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[ { "docid": "22722479", "title": "", "text": "did not raise this argument in the district court, review is limited to plain error. See Calverley, 37 F.3d at 162-64. Slaughter concedes that a two-level reduction in his offense level would not affect the applicable sentencing guideline range. If his offense level were reduced from 46 to 44, his offense level would still be treated as the maximum offense level of 43 pursuant to U.S.S.G. Ch.5, Pt. A, comment, (n.2). Because Slaughter concedes that the correction of this alleged error would not change the applicable guideline sentencing range, we decline to address the merits of this claim. See United States v. Lopez, 923 F.2d 47, 51 (5th Cir.1991). Slaughter argues that his conviction should be reversed because the jury was not required to find the quantity of drugs as an element of each of the charged offenses. Slaughter’s argument is foreclosed by this court’s precedent. See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.2000); United States v. Watch, 7 F.3d 422, 426 (5th Cir.1993). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." } ]

[ { "docid": "22913399", "title": "", "text": "which the district court relied. Thus, subsequent caselaw invalidates the district court's rationale on remand — reasoning that should not have been relied upon, given the narrowly tailored remand order. . Walterman, 408 F.3d at 1085 (\"Walterman did not advance such a claim before the district court during his first sentencing proceeding, in his first appeal, or in his second sentencing proceeding.”). . Mares, 402 F.3d at 516 (\"Mares did not object to his sentence on this basis in the district court and raises it for the first time on direct appeal.”). . At the first sentencing hearing McCrim-mon objected \"to the additional quantities and the facts that — and the facts that those amounts — were not seized nor waived.” At the second sentencing hearing McCrimmon filed a written objection, citing Blakely. . Though not dispositive of the issue because the holding concerned state sentencing guidelines, Apprendi did provide the logical framework for a Booker-type objection on appeal, as to the federal sentencing guidelines. See 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. . In two unpublished opinions from December 2004, this Court refused to reach Blakely arguments beyond the scope of their respective remand orders, never addressing the exceptions to the mandate rule. United States v. Floyd, 122 Fed.Appx. 98 (5th Cir.2004), cert. denied, 541 U.S. 1054, 124 S.Ct. 2190, 158 L.Ed.2d 752 (2004); United States v. Taylor, 117 Fed.Appx. 361 (5th Cir.2004). . “Whether the law of the case doctrine foreclosed the district court’s exercise of discretion on remand and the interpretation of the scope of this court's remand order present questions of law that this court reviews de novo.’’ Lee, 358 F.3d 315, 320 (5th Cir.2004) (citing Sobley v. Southern Natural Gas Co., 302 F.3d 325, 332 (5th Cir.2002)). . See United States v. Vanorden, 414 F.3d 1321 (11th Cir.2005) (per curiam), cert, denied, Vanorden v. United States, - U.S. -, 126 S.Ct. 633, 163 L.Ed.2d 513 (2005) (discussing the difference between forfeiture and waiver in the Booker context); see also United States v. Buonocore, 416 F.3d 1124, 1133-42 (10th Cir.2005). . Procedural default rules" }, { "docid": "23462318", "title": "", "text": "were valid under Burger’s regulatory exception to the warrant requirement. Given our conclusion that the stop was permissible, we need not address the government’s argument that this court should affirm because Officer Scales had probable cause or reasonable suspicion to stop Fort’s truck based on his observation of a regulatory violation. We note, however, that the government waived this argument at the suppression hearing by expressly representing to the district court that it was relying on this evidence only as “background and not reasonable suspicion or probable cause for the stop.” See Matter of Christopher, 28 F.3d 512, 521 (5th Cir.1994) (waiver may be demonstrated by a showing that a party intended to relinquish a known right or privilege). As a result of the government’s representation, the facts concerning the officer’s observation were not developed. The time for doing so has passed. III. Constitutionality of 21 U.S.C. § 811 under Apprendi v. New Jersey Fort contends that section 841 is unconstitutional because Congress intended the facts that determine the maximum sentence to be sentence enhancements rather than elements, in violation of Ap prendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We recently rejected the argument that 21 U.S.C. §§ 841(a) and (b) are unconstitutional on their face in light of Apprendi. See United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.2000) (revised opinion) (per curiam). Fort’s contention is rejected. To the extent that Fort contends that the statute is unconstitutional as applied to Mm, this contention also lacks merit. Fort contends that because the baseline marijuana offense is 21 U.S.C. § 841(b)(4), with a statutory maximum of one year, his 21-month sentence exceeds that maximum and violates Apprendi. Because Fort did not raise the issue of the applicability of section 841(b)(4) in the district court, his contention is reviewed for plain error. See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.), cert. denied, - U.S. -, 121 S.Ct. 301, 148 L.Ed.2d 242 (2000). The one-year maximum sentence applies only to distribution of a “small amount of marihuana for no remuneration.” See" }, { "docid": "22423766", "title": "", "text": "PER CURIAM: Teofilo Santos Rivera appeals his sentence following a guilty plea to illegal entry after deportation pursuant to 8 U.S.C. § 1326(b)(2). We review the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. See United States v. Stevenson, 126 F.3d 662, 664 (5th Cir.1997). Rivera first contends that his sentence should be vacated' because his state felony conviction for possession of a controlled substance, which resulted in an increased sentence under 8 U.S.C. § 1326(b)(2), was an element of the offense that should have been charged in the indictment. Rivera acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 120 S.Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), cert. denied, - U.S. -, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). Rivera’s argument is foreclosed. Rivera also challenges the characterization of his prior Texas conviction for cocaine possession as an “aggravated felony” offense and the concomitant sixteen-level increase in his base offense level under U.S.S.G. § 2L1.2(b)(l)(A), contending that his sentence should be reduced by the rule-of-lenity. Rivera’s constitutional claim that the rule-of-lenity is applicable is reviewed de novo. United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir.), cert. denied, 529 U.S. 1135, 120 S.Ct. 2017, 146 L.Ed.2d 965 (2000). In United States v. Hinojosa-Lopez, 130 F.3d 691, 692-93, 694 (5th Cir.1997), we held that a state conviction is an “aggravated felony” pursuant to § 2L1.2(b)(l)(A) if “(1) the offense was punishable under the Controlled Substances Act and (2) it was a felony” under applicable state law. Id. at 694. Rivera has not explicitly disputed that, as a matter of statutory construction, his challenge to the § 2L1.2(b)(l)(A) increase is foreclosed by Hinojosa-Lopez. See United States v. Garcia Abrego, 141 F.3d" }, { "docid": "22611109", "title": "", "text": "criminal history but applied a downward departure of three points for acceptance of responsibility. See U.S.S.G. § 3El.l(a) & (b). II. Discussion Valenzuela-Quevedo challenges his conviction and sentence on three grounds. First, he argues that 21 U.S.C. § 841(a) and (b), under which he was convicted, are unconstitutional. Second, he claims that the district court erred in sentencing him as a career offender. Finally, he challenges his U.S. Sentencing Guidelines-imposed sentence based on United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We treat each in turn. A. Constitutionality of 21 U.S.C. § 841 For the first time on appeal, Valenzuela-Quevedo claims that the provisions found at 21 U.S.C. § 841(a) and (b) are facially unconstitutional. He asserts that the drug type and quantity gradations of § 841(b) are to be viewed as sentencing factors rather than as elements of a separate offense. He claims that, as such, they are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Valenzuela-Quev-edo correctly acknowledges that we rejected this very argument in United States v. Slaughter, 238 F.3d 580 (5th Cir.2000), where we treated the gradations as elements of the crime. There, we upheld a sentence where the drug type and quantity had been charged and found by a jury as elements of the crime. Here, the drug type and amount were charged in the indictment and admitted by the defendant. Thus, Valenzuela-Quevedo’s sentence was properly based on the gradations provided for in § 841(b). B. Applicability of Career Offender Status Next, Valenzuela-Quevedo claims that the district court erred in concluding that his prior Utah conviction was a crime of violence for purposes of § 4B1.1 of the U.S. Sentencing Guidelines. Consequently, he argues, he cannot be designated a career offender. This Court reviews de novo a district court’s interpretation and application of the Sentencing Guidelines. United States v. Charles, 301 F.3d 309, 312-13 (5th Cir.2002) (en banc). Section 4B1.1 of the United States Sentencing Guidelines provides that a defendant is a career offender if (1) the defendant was at least" }, { "docid": "23592819", "title": "", "text": "that by then.* nature were not testimonial. Id. Accordingly, we held that the introduction into evidence of the immigration file did not run afoul of Crawford and that the district court properly relied on official, non-testimonial public records admissible under the Federal Rules of Evidence, in determining that the defendant was a previously deported alien found in the United States without permission. Id. at 734. Although Gutierrez-Gonzales is an unpublished opinion and is not prece-dential, it is persuasive authority, see 5th CiR. R. 47.5.4, and we adopt its reasoning and holding. The CNR admitted into evidence in this case, reflecting the absence of a record that Rueda-Rivera had received consent to re-enter the United States, does not fall into the specific categories of testimonial statements referred to in Crawford. We decline to extend Crawford to reach such a document. We therefore hold that the district court properly admitted the CNR into evidence. B Rueda-Rivera argues that 8 U.S.C. §§ 1326(b)(1) and (b)(2) are unconstitutional in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the fact of his prior conviction is an element of the offense, rather than a sentencing enhancement. As Rueda-Rivera acknowledges, this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Rivera, 265 F.3d 310, 312 (5th Cir.2001) (“Apprendi did not overrule Almendarez-Torres.”)', Apprendi, 120 S.Ct. 2348, 530 U.S. at 489-90. III For the foregoing reasons, the judgment of the district court is AFFIRMED." }, { "docid": "22697252", "title": "", "text": "objection argued that using the larger quantities would conflict with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and would disrespect “the sanctity of the jury proceedings.” Second, he objected to the four-level “organizer or leader” enhancement on the ground that the evidence at trial did not support such a factual finding, but he did not raise the constitutional claim regarding this enhancement. The district court overruled Pineiro’s objections and sentenced him to 121 months on the first count, 60 months on the second count, and 60 months on the third count, with the sentences to run concurrently. Piniero then appealed his sentence. In his initial brief, he conceded that his Ap-prendi-based challenge to the district court’s drug-quantity calculation was foreclosed by circuit precedent, but he nonetheless raised the issue to preserve it for further review. After briefing was completed but before oral argument, the Supreme Court decided Blakely, and we ordered supplemental briefing to assess its impact. Pineiro contends that Blakely applies to the federal Guidelines and that his sentence must be vacated and the case remanded for resentencing. The government contends that Blakely does not apply- II. ANALYSIS A. Impact of Blakely Had today’s case been decided a month ago, Pineiro’s Apprendi challenge would not have been a difficult one to resolve. Although post-verdict judicial findings of fact increased Pineiro’s sentence substantially, the resulting sentence does not exceed the statutory maximum set forth in the United States Code. We therefore would simply have applied long-entrenched circuit precedent that holds Apprendi inapplicable to such circumstances. See, e.g., United States v. Floyd, 343 F.3d 363, 372 (5th Cir.2003), cert. denied, — U.S. ——, 124 S.Ct. 2190, 158 L.Ed.2d 752 (2004); United States v. McIntosh, 280 F.3d 479, 484 (5th Cir.2002); United States 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); Doggett, 230 F.3d at 165-66. This line of authority embraces the view that judge-made factual findings that determine Guidelines ranges below the congressionally enacted maximum sentence are constitutionally equivalent to the sentencing" }, { "docid": "19332018", "title": "", "text": "example, Banda supplied drugs to Michael Fletcher weekly from March 2004 to June 2004 in varying amounts. Banda concedes that a conservative estimate of one ounce per week would equate to one pound of methamphetamine. He also supplied drugs to Fletcher on four or five subsequent occasions in amounts of one to two ounces. Banda was connected to at least two other transactions involving pound quantities, was involved in multiple transactions of lesser amounts, and engaged in bartering his dogs for drugs. The district court is permitted to make reasonable estimates of drug quantities and may make reasonable inferences from the facts. Betancourt, 422 F.3d at 246. In light of this and the wide latitude afforded the district court’s findings, the district court’s conclusion that Banda was involved with at least 1.5 kilograms of methamphetamine was not clearly erroneous based on the record as a whole. See id. Banda also argues that the district court’s determination of facts relevant to determining the guideline range violates his Sixth Amendment rights and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Banda correctly concedes that this argument is fore closed. See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.2005). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "23107168", "title": "", "text": "probability that the result would have been different but for the error; he has not met his burden of showing prejudice; he has not met his burden of showing that his substantial rights have been affected. Id. at 1301 (citing Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090, 2105, 144 L.Ed.2d 370 (1999)). The defendant’s burden has been satisfied in past cases by presenting evidence indicating that the district court was frustrated with the severity of the Guidelines and sought to find a way to have a lower sentence imposed, United States v. Martinez, 407 F.3d 1170, 1173-74 (11th Cir.2005). A sentence that is at the low end of the Guideline range, however, is not in and of itself sufficient to satisfy the third-prong burden. See United States v. Fields, 408 F.3d 1356, 1360-61 (11th Cir.2005) (applying plain error review in holding that the fact that the defendant was sentenced to the bottom of the mandatory Guidelines range, without more, is insufficient to satisfy the third prong’s requirement that the defendant show a reasonable probability of a lesser sentence under an advisory guideline system), cert. denied, — U.S. -, 126 S.Ct. 221, 163 L.Ed.2d 193 (2005). The record indicates no frustration on the part of the district court with the severity of the Guidelines sentence, nor did the district court indicate a desire to impose a lesser sentence in Underwood’s case. As a result, Underwood’s argument relies solely on the fact the district court imposed the lowest possible sentence within the Guidelines range. We explained in Fields, however, that this is not sufficient to demonstrate a reasonable probability of a lesser sentence. Accordingly, Underwood has not established that his substantial rights were affected by the district court’s Booker error, and thus he is not entitled to relief on this issue. See Rodriguez, 398 F.3d at 1301. B. Constitutionality of 21 U.S.C. § 841. Underwood argues for the first time on appeal that 21 U.S.C. § 841 is unconstitutional, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Underwood claims" }, { "docid": "1391041", "title": "", "text": "sort of an odd time for purposes of marijuana.” After calculating a Sentencing Guideline range of 97 to 121 months of imprisonment, which produced a range of 120 to 121 months when combined with the statutory minimum, the court sentenced James to 120 months in prison to be followed by eight years of supervised release. II. Analysis James raises four arguments on appeal. First, he argues the superseding indictment, in violation of Alleyne, 133 S.Ct. 2151, did not sufficiently notify him that he would be held responsible for manufacturing 100 or more marijuana plants. As a result, James argues, the district court erred in instructing the jury to make a quantity determination and in applying the ten-year mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(l)(B)(vii). Second, James argues the district court improperly admitted Spencer’s hearsay testimony under the exception for statements “in furtherance of a conspiracy.” Fed. R. Evid. 801(d)(2)(E). Third, James challenges the admission of Bruce’s testimony regarding the Massachusetts growing-operation. Lastly, James contends his sentence is prohibited by the Eighth Amendment. A. Alleyne Claim We review James’s preserved Al-leyne claim, based on an allegedly deficient indictment, de novo. See United States v. Rose, 802 F.3d 114, 127 (1st Cir. 2015); United States v. Etienne, 772 F.3d 907, 922 (1st Cir. 2014). In Alleyne, the Supreme Court, extending the logic of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that “any fact that increases the mandatory minimum [penalty for a crime] is an ‘element’ that must be submitted to the jury” and found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155. Both Alleyne and Apprendi also emphasized the necessity of including these penalty-increasing facts in the indictment. See id. at 2159-60; Apprendi, 530 U.S. at 476, 478-80, 120 S.Ct. 2348; See United States v. McIvery, 806 F.3d 645, 648-49 (1st Cir. 2015), cert. denied, 2016 WL 1599830, — U.S.-, 137 S.Ct. 44, 196 L.Ed.2d 51 (Oct. 3, 2016); see also United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). “Defining facts that" }, { "docid": "23474029", "title": "", "text": "EDITH H. JONES, Circuit Judge: Defendant-Appellant Oscar Danilo Garcia-Rodriguez (“Garcia”) appeals his sentence following his guilty ’plea for illegal reentry by a felon, -in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(1). The district court sentenced Garcia to thirty-seven months’ confinement, a three-year period of supervised release, and a $100 special assessment. Garcia was sentenced on June 19, 2003, and Final Judgment was entered on June 24, 2003. Garcia’s appeal contends, for the first time, that the court miscalculated the effect of his two probated felony drug convictions when applying U.S.S.G. § 2L1.2(b)(l)(B). Finding no plain error, we AFFIRM. Discussion Garcia raises four challenges to his sentence. First, Garcia claims the district court improperly imposed a twelve-level enhancement under United States Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(l)(B) because his prior California felony conviction for the sale or transportation of marijuana does not constitute a “drug trafficking offense for which the sentence imposed was. 13 months or less” in light of existing precedent and a clarifying amendment to the 2002 Sentencing Guidelines. Second, Garcia contends the district court erred when it assessed one criminal history point for each of Garcia’s two prior Texas misdemeanor theft convictions. Third, Garcia contends his Sixth Amendment rights were violated because he was sentenced under the mandatory Sentencing Guidelines regime. Finally, Garcia argues, solely for purposes of preservation of the argument pending Supreme Court review, that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) should be interpreted to overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Because all of these challenges are raised for the' first time on appeal, we review the claims only for plain error. United States v. Chung, 261 F.3d 536, 539 (5th Cir.2001). This court finds plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed,2d 508 (1993); United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005). “If all three conditions" }, { "docid": "22553649", "title": "", "text": "PER CURIAM: Treating the petition for rehearing as a petition for en banc rehearing, the petition for rehearing is DENIED. Treating the petition for rehearing as a petition for panel rehearing, the petition for rehearing is GRANTED for the limited purpose of withdrawing the prior panel opinion and substituting this opinion therefor. This is a post-Booker case in which Appellant Roberto Aguirre-Villa (“Aguirre-Villa”) challenges the reasonableness of his sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the constitutionality of his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm his sentence. I. In 2004, Aguirre-Villa pled guilty to illegal reentry and was sentenced to 77 months in prison. In 2005, this Court granted the parties’ agreed motion to remand for resentencing post-Booker. At resentencing, Aguirre-Villa asked the district court to impose a sentence below the applicable guideline sentencing range. He argued that a sentence within the applicable 77 to 96 month range would be unreasonable because the Western District of Texas lacked a U.S.S.G. § 5K3.1 “early disposition” program, which would have permitted a downward departure of up to four levels in a district with such a program. Prior to his initial sentencing, Aguirre-Villa had also challenged (under Apprendi) the sixteen-level enhancement imposed by the court for a prior aggravated felony conviction. The district court rejected Aguirre-Villa’s Apprendi challenge and decided that although the guideline range would have been lower (52 to 78 months instead of 77 to 96 months) had Aguirre-Villa been arrested in an adjacent district (the District of New Mexico), it would reimpose a 77-month sentence. Aguirre-Villa timely appealed. II. A. Booker Challenge Post-Booker, we continue to review a district court’s interpretation and application of the guidelines de novo and its findings of fact for clear error. United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.2006) (citing United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Creech, 408 F.3d 264, 270 & n. 2 (5th Cir.), cert. denied, — U.S. ——, 126 S.Ct. 777," }, { "docid": "12302256", "title": "", "text": "8 U.S.C. § 1326(b)(2), imposed on the basis of his prior conviction for an aggravated felony, violates his Sixth Amendment rights, although he acknowledged at señ tencing that the argument was foreclosed by Supreme Court precedent. He nevertheless asserts on appeal that the statute unconstitutionally required the district court to engage in fact-finding in order to determine whether his prior conviction qualified as an aggravated felony under § 1326(b)(2). We apply de novo review to constitutional questions. United States v. Clemmons, 461 F.3d 1057, 1061 (8th Cir.2006). We have repeatedly rejected this type of claim on the basis of Supreme Court precedent, and we do so again today. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”) (emphasis added); Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. 1219 (holding that § 1326(b)(2) is a sentencing factor and not a separate criminal offense that must be set forth in the indictment). “While a finding that the prior felony conviction qualifies as ‘aggravated’ is a fact that can increase the defendant’s sentence beyond the initially prescribed maximum sentence, the plain language of Apprendi excepts the fact of prior convictions from its holding.” United States v. Kempis-Bonola, 287 F.3d 699, 702 (8th Cir.), cert. denied, 537 U.S. 914, 123 S.Ct. 295, 154 L.Ed.2d 196 (2002). See, e.g., United States v. Carrillo-Beltran, 424 F.3d 845, 848 (8th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1384, 164 L.Ed.2d 89 (2006); United States v. Marcussen, 403 F.3d 982, 984 (8th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 457, 163 L.Ed.2d 347 (2005). Additionally, we have previously “rejected the argument that the nature of a prior conviction is to be treated differently from the fact of a prior conviction.” Marcussen, 403 F.3d at 984. For these reasons, Lopez-Zepeda’s Sixth Amendment challenge to § 1326(b)(2) fails. III. Accordingly, we affirm the judgment of the district court. . The" }, { "docid": "23516890", "title": "", "text": "the court fac- tored into relevant conduct under § IB 1.3 the fact that the drugs were destined for a foreign nation and were the subject of foreign prosecution. Because this is a misapplication of the Guidelines, we vacate the sentences and remand for resentenc- ing. The resentencing of the defendants must be conducted in accord with the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Thomas, 274 F.3d 655 (2d Cir.2001). See United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir.1998) (“The general rule is that a defen- dant should be sentenced under the law in effect at the time of sentencing.”), cert. denied, 525 U.S. 1088, 119 S.Ct. 840, 142 L.Ed.2d 695 (1999); c.f. United States v. Kirkham, 195 F.3d 126, 132 n. 5 (2d Cir.1999) (“[O]n remand [defendant’s] sentence is governed by the version of the Guidelines in effect at the time of tencing”). Apprendi 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.” 530 U.S. at 490, 120 S.Ct. 2348. Title 21 U.S.C. § 960, the statute governing the defendants’ sentences for Counts 1 and 4, provides differing penalties according to the quantity of various drugs trafficked by the defendant. Following Thomas, it is clear that drug quantity is an element of a § 960 offense “that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt.” 274 F.3d at 673; see also United States v. Chavez, 267 F.3d 76, 78-79 (2001) (per curiam) (applying an Apprendi analysis to a sentence entered under § 960); United States v. Dennis, 271 F.3d 71, 74 (2d Cir.2001) (per curiam) (same). In this case, although quantity was alleged in the defendants’ indictments, the District Court instructed the jury that it need not consider the quantity of drugs trafficked by the defendants. Therefore, because we are remanding this case for resentencing so" }, { "docid": "22157266", "title": "", "text": "1101(a)(43)(B); Lopez, — U.S. —, 127 S.Ct. 625, 629, 166 L.Ed.2d 462. Under 18 U.S.C. § 924(c), “the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act Lopez, — U.S. —, 127 S.Ct. 625, 627, 166 L.Ed.2d 462. Mere possession of a controlled substance is not a felony under the CSA. 21 U.S.C. § 844(a); Lopez, — U.S. —, 127 S.Ct. 625, 627, — L.Ed.2d —. The Supreme Court held, therefore, that the INA, 8 U.S.C. § 1101(a)(43)(B), does not penalize an alien for mere possession of a controlled substance. Lopez, — U.S. —, 127 S.Ct. 625, 633, 166 L.Ed.2d 462. The Court reversed the Eight Circuit’s judgment affirming the BIA’s order removing Lopez. Id. Given the Court’s reference to the Guidelines, its citation to Hinojosa-Lopez, and its interpretation of a phrase directly adopted by the Guidelines, Lopez ineluctably applies with equal force to immigration and criminal cases. The Government agrees. As Estrada was sentenced under now-rejected jurisprudence, we vacate his sentence and remand for resentencing. Estrada also challenges his conviction and sentence by arguing that, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury is unconstitutional. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Estrada concedes as much, but he raises the argument to preserve it for further review. AFFIRMED IN PART; VACATED IN PART AND REMANDED. . All pending motions are denied." }, { "docid": "23107169", "title": "", "text": "a reasonable probability of a lesser sentence under an advisory guideline system), cert. denied, — U.S. -, 126 S.Ct. 221, 163 L.Ed.2d 193 (2005). The record indicates no frustration on the part of the district court with the severity of the Guidelines sentence, nor did the district court indicate a desire to impose a lesser sentence in Underwood’s case. As a result, Underwood’s argument relies solely on the fact the district court imposed the lowest possible sentence within the Guidelines range. We explained in Fields, however, that this is not sufficient to demonstrate a reasonable probability of a lesser sentence. Accordingly, Underwood has not established that his substantial rights were affected by the district court’s Booker error, and thus he is not entitled to relief on this issue. See Rodriguez, 398 F.3d at 1301. B. Constitutionality of 21 U.S.C. § 841. Underwood argues for the first time on appeal that 21 U.S.C. § 841 is unconstitutional, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Underwood claims that if the drug quantities in 21 U.S.C. § 841 are sentencing factors and not elements of the offense, as this court has previously held, then the statute is unconstitutional. He reasons that, because district courts have historically determined facts underlying the sentencing factors in 21 U.S.C. § 841(b), and Appren-di requires a jury, not a judge, to determine facts that increase the penalty for a crime beyond the statutory maximum, § 841 does not conform with Apprendi and is therefore unconstitutional. When a defendant fails to raise an Apprendi constitutional error in the district court, we review for plain error, United States v. Hester, 287 F.3d 1355, 1357 (11th Cir.2002), the requirements of which have been outlined above. In United States v. Sanchez, 269 F.3d 1250 (11th Cir.2001) (en banc) we held that Apprendi only implicated § 841 where a judge-found drug quantity increased a defendant’s sentence beyond the statutory maximum. Sanchez, 269 F.3d at 1268. In cases where a “defendant’s actual sentence falls within the range prescribed by the statute for the crime" }, { "docid": "23086127", "title": "", "text": "F.3d 881, 882 (8th Cir.2008); United States v. Smartt, 129 F.3d 539, 542 (10th Cir.1997); United States v. Eggersdorf, 126 F.3d 1318, 1320 (11th Cir.1997); United States v. Pardue, 36 F.3d 429, 431 (5th Cir.1994). Cook attempts to avoid this precedent and meet section 3582(c)(2)’s threshold “based on” requirement in two ways: first, by pointing to the two-step sentencing procedure under the Sentencing Guidelines, and second, by challenging the lawfulness of the imposition of the mandatory minimum sentence. Neither attempt succeeds. First, Cook contends that his sentence was in part “based on” a sentencing range because of the two-step sentencing process required by the Sentencing Guidelines. The district court must first determine “the guideline range” and only then determine, second, whether the “applicable guideline range” is “trumped” by a statutory mandatory minimum. Appellant’s Br. 11; see U.S.S.G. §§ 1B1.1 & 5Gl.l(b) . “Because this process requires that the applicable sentencing range be part of the basis for the sentence, when the range is reduced the district court necessarily has the authority to reduce the sentence.” Appellant’s Br. 7. Because Cook claims he therefore is eligible for relief under section 3582(c)(2), it follows Cook argues that the district court can reassess the original decision to sentence him to a mandatory minimum sentence under an improper sentencing theory, which allowed the district court rather than a jury to determine the amount of drugs for which he was responsible, see United States v. Booker, 543 U.S. 220, 244-45, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and upon recalculating his guideline range not reimpose the improper mandatory minimum upon resentencing. (b) Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence. As preliminary matters we note that on appeal Cook agrees his Apprendi claim is foreclosed because his 240-months sentence does not exceed the statutory maximum for the offense of conviction, see United States v. Graham, 317 F.3d 262, 273-74 (D.C.Cir.2003). Under 21" }, { "docid": "22847301", "title": "", "text": "the now-advisory Sentencing Guidelines was in effect when Fernandez-Cusco was sentenced in February 2005 for his illegal-reentry conviction. His base offense level of 8 was increased by 16 levels, pursuant to Sentencing Guideline § 2L1.2(b)(l)(A)(ii), the district court adopting the recommendation in the Presentence Investigation Report (PSR) that Fernandez^Cusco’s previous Minnesota sexual-conduct crime was a “crime of violence”. After a three-level aceeptance-of-responsibility reduction, his total offense level was 21, with an advisory guideline range of 46 to 57 months. Fernandez-Cusco was sentenced to 46 months in prison, followed by a two-year supervised release. II. As described, Fernandez-Cusco raises three issues. The principle issue concerns the erime-of-violence ruling. He concedes the other two issues are foreclosed by our precedent. A. Concerning his conviction and sentence, Fernandez-Cusco contends the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. This issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Fernandez-Cusco maintains Al-mendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), our court has repeatedly rejected this contention on the basis that Almendarez-Torres remains binding. See United States v. Garzcu-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Fernandez-Cusco concedes this claim is foreclosed; he raises it only to preserve it for further review. B. Fernandez-Cusco was sentenced a few weeks after the Sentencing Guidelines were held in January 2005 to be only advisory. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Nevertheless, post-Booker, district courts must still consider, and properly apply, the Guidelines. E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Mares, 402 F.3d 511, 518 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Fernandez-Cusco claims his prior guilty-plea conviction for criminal sexual conduct is not a crime of violence under the 2004 Guideline § 2L1.2(b)(l)(A)(ii). He did" }, { "docid": "22847302", "title": "", "text": "overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), our court has repeatedly rejected this contention on the basis that Almendarez-Torres remains binding. See United States v. Garzcu-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Fernandez-Cusco concedes this claim is foreclosed; he raises it only to preserve it for further review. B. Fernandez-Cusco was sentenced a few weeks after the Sentencing Guidelines were held in January 2005 to be only advisory. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Nevertheless, post-Booker, district courts must still consider, and properly apply, the Guidelines. E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Mares, 402 F.3d 511, 518 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Fernandez-Cusco claims his prior guilty-plea conviction for criminal sexual conduct is not a crime of violence under the 2004 Guideline § 2L1.2(b)(l)(A)(ii). He did not, however, object in district court to this enhancement. 1. Before engaging in the resulting plain-error review, we note that, although the Government does not claim Fernandez-Cusco waived this contention, review of the PSR and Fernandez-Cusco’s objections to it suggests he may have done so. He objected to his PSR by requesting “a downward departure for criminal history over-representation”. Specifically, he “concede[d] the serious nature of [the pri- or Minnesota sex] offense, [but claimed] such seriousness is already considered by the 16-level enhancement”. In short, he indicated the enhancement was proper. Of course, a defendant does not waive plain-error review simply by “failfing] to object to the characterization of his prior offense as a crime of violence”. United States v. Alfaro, 408 F.3d 204, 207 n. 1 (5th Cir.) (internal quotation omitted), cert. denied, — U.S. ——, 126 S.Ct. 271, 163 L.Ed.2d 243 (2005). Fernandez-Cusco, however, did more than fail to object to the crime-of-violence enhancement; he affirmatively recognized it was being applied and indicated it was proper. That acknowledgment arguably constitutes invited error. Nevertheless," }, { "docid": "10661675", "title": "", "text": "Lopez asserts that the district court erred by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a). Lopez contends that the enhancement pursuant to 8 U.S.C. § 1326(b) was impermissibly predicated on a prior felony conviction that was not proved to a jury or admitted by Lopez. Lopez urges us to conclude that the United States Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been narrowed by subsequent rulings, calling into doubt the enhancement in this case. A claim raised for the first time on appeal that a sentence violates a defendant-appellant’s constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is reviewed for plain error. United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001). “Under the plain error standard, [Lopez] must establish an error, that was plain, and that affected his substantial rights.” United States v. Buckland, 289 F.3d 558, 563 (9th Cir.2002) (en banc). Lopez’s argument is foreclosed by our precedent. See United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (noting that this Court continues to be bound by the Supreme Court’s holding in Almendarez-Torres), cert. denied, — U.S.-, 126 S.Ct. 1911, 164 L.Ed.2d 667 (2006); see also, United States v. Delaney, 427 F.3d 1224, 1226 (9th Cir.2005) (stating that “[t]he Supreme Court has made clear that the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt or admitted by the defendant to satisfy the Sixth Amendment”). Similarly, Lopez’s argument that because 8 U.S.C. § 1326(b)(2) requires an alien’s prior removal to have been subsequent to the pri- or conviction, Apprendi requires that the temporal sequence of conviction and removal — as distinct from the fact of conviction itself — be proved to a jury beyond a reasonable doubt, is foreclosed. See Castillo-Riveni, 244 F.3d at 1025 (explaining that Apprendi carved out a recidivism exception under which neither the prior conviction nor the fact that the removal was subsequent to" }, { "docid": "16942479", "title": "", "text": "requires the court to resolve disputed issues of fact before sentencing, the court can adopt facts contained in the PSR without inquiry as long as the “facts had an adequate evidentiary basis and the defendant does not present rebuttal, evidence.” United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364 (citations omitted). Although Tampico objected to a number of factual issues in the PSR, he did not introduce any rebuttal evidence. Thus, the district court did not err in accepting the PSR as evidence. III For the reasons stated above, Tampico’s conviction and sentence are AFFIRMED. Circuit Judge of the Eleventh Circuit, sitting by designation. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . For the purpose of Supreme Court review, Tampico also contends that the district court erred in enhancing his sentence under 18 U.S.C. § 2252A(b)(1) for a prior conviction relating to sexual abuse, because the prior conviction was not alleged in the indictment. Tampico claims that this is unconstitutional after the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which found that sentencing factors must be proved beyond a reasonable doubt. Tampico recognizes, however, that this issue is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). . Pattern of activity involving the sexual abuse or exploitation of a minor is defined as any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same or different victims; or (C) resulted in a conviction for such conduct. U.S.S.G. § 2G2.2, cmt. n.1. ." } ]

[ { "docid": "22999108", "title": "", "text": "case as a facial challenge. While there is no direct evidence that the State is acting with intended animus toward respondent and others’ speech, see Brief for Petitioner 13, n. 5, we have expressly rejected the argument that “discriminatory . . . treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 117 (1991). Our cases have repeatedly frowned on regulations that discriminate based on the content of the speech or the identity of the speaker. See, e. g., Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 190 (1999) (Government cannot restrict advertising for private casinos while allowing the advertising for tribal casinos); Simon & Schuster, Inc., 502 U. S., at 116 (government cannot “singl[e] out income derived from expressive activity for a burden the State places on no other income”); Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 229 (1987) (a tax that applies to some magazines but not to others “is particularly repugnant to First Amendment principles: a magazine’s tax status depends entirely on its content” (emphasis deleted)); Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984) (“Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment”); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 582 (1983) (a tax that “single[s] out the press for special treatment” is unconstitutional); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972) (“[W]e have frequently condemned ... discrimination among different users of the same medium for expression”)." } ]

[ { "docid": "22756194", "title": "", "text": "financial benefits by observing that “[t]he case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to ‘ai[m] at the suppression of dangerous ideas,’ ” see id., at 548 (quoting Cammarano v. United States, 858 U. S. 498, 513 (1959), in turn quoting Speiser v. Randall, 357 U. S. 513, 519 (1958)). Regan relied on a distinction based on preferential treatment of certain speakers — veterans’ organizations — and not a distinction based on the content or messages of those groups’ speech. 461 U. S., at 548; cf. Perry Ed. Assn., 460 U. S., at 49. The University’s regulation now before us, however, has a speech-based restriction as its sole rationale and operative principle. The distinction between the University’s own favored message and the private speech of students is evident in the case before us. The University itself has taken steps to ensure the distinction in the agreement each CIO must sign. See supra, at 824. The University declares that the student groups eligible for SAF support are not the University’s agents, are not subject to its control, and are not its responsibility. Having offered to pay the third-party contractors on behalf of private speakers who convey their own messages, the University may not silence the expression of selected viewpoints. The University urges that, from a constitutional standpoint, funding of speech differs from provision of access to facilities because money is scarce and physical facilities are not. Beyond the fact that in any given case this proposition might not be true as an empirical matter, the underlying premise that the University could discriminate based on viewpoint if demand for space exceeded its availability is wrong as well. The government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity. Had the meeting rooms in Lamb's Chapel been scarce, had the demand been greater than the supply, our decision would have been no different. It would have been incumbent on the State, of course, to ration or allocate the scarce resources on some acceptable neutral principle; but nothing in our" }, { "docid": "22895987", "title": "", "text": "course, but choices “on some acceptable [viewpoint] neutral principle,” like artistic excellence and artistic merit; “nothing in our decision[s] in- dieate[s] that scarcity would give the State the right to exercise viewpoint discrimination that is otherwise impermissible.” Ibid.; see also Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666, 676 (1998) (scarcity of air time does not justify viewpoint-based exclusion of candidates from a debate on public television; neutral selection criteria must be employed). If the student activities fund at issue in Rosen-berger had awarded competitive, merit-based grants to only 50%, or even 5%, of the applicants, on the basis of “journalistic merit taking into consideration the message of the newspaper,” it is obvious beyond peradventure that the Court would not have come out differently, leaving the University free to refuse funding after considering a publication’s Christian perspective. A word should be said, finally, about a proposed alternative to this failed analogy. As the Solicitor General put it at oral argument, “there is something unique . . . about the Government funding of the arts for First Amendment purposes.” Tr. of Oral Arg. 27. However different the governmental patron may be from the governmental speaker or buyer, the argument goes, patronage is also singularly different from traditional regulation of speech, and the limitations placed on the latter would be out of place when applied to viewpoint discrimination in distributing patronage. To this, there are two answers. The first, again, is Rosenherger, which forecloses any claim that the NEA and the First Amendment issues that arise under it are somehow unique. But even if we had no Rosenherger, and even if I thought the NE A’s program of patronage was truly singular, I would not hesitate to reject the Government’s plea to recognize a new, categorical patronage exemption from the requirement of viewpoint neutrality. I would reject it for the simple reason that the Government has offered nothing to justify recognition of a new exempt category. The question of who has the burden to justify a categorical exemption has never been explicitly addressed by this Court, despite our recognition of" }, { "docid": "22738333", "title": "", "text": "the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each. The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e. g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683 (1986) (protecting the “function of public school education”); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 129 (1977) (furthering “the legitimate penological objectives of the corrections system” (internal quotation marks omitted)); Parker v. Levy, 417 U. S. 733, 759 (1974) (ensuring “the capacity of the Government to discharge its [military] responsibilities” (internal quotation marks omitted)); Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 557 (1973) (“[F]ederal service should depend upon meritorious performance rather than political service”). The corporate independent expenditures at issue in this ease, however, would not interfere with governmental functions, so these cases are inapposite. These precedents stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech. By contrast, it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue. We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion. A 1 The Court has recognized that First Amendment protection extends to corporations. Bellotti, supra, at 778, n. 14 (citing Limnark Associates," }, { "docid": "22738331", "title": "", "text": "inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “ 'has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see Buckley, supra, at 14 (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution”). For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464 (opinion of Roberts, C. J.). While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (Kennedy, J., concurring in judgment), the quoted language from WRTL provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. See, e. g., United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) (striking dowm content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content. Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others," }, { "docid": "22181017", "title": "", "text": "society’s interest in free and informed discussion on political issues, a discourse vital to the capacity for self-government. “In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.” First National Bank of Boston v. Bellotti, 435 U. S. 765, 784-785 (1978). There is little doubt that by silencing advocacy groups that operate in the corporate form and forbidding them to speak on electoral politics, Michigan’s law suffers from both of these constitutional defects. First, the Act prohibits corporations from speaking on a particular subject, the subject of candidate elections. It is a basic precept that the State may not confine speech to certain subjects. Content-based restrictions are the essence of censorial power. Ibid, (invalidating statute that allowed corporations to speak on referenda issues that materially affected their business, but not on other subjects). See also Consolidated Edison Co. of New York v. Public Service Comm’n of New York, 447 U. S. 530, 537 (1980) (“The First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic”). Second, the Act discriminates on the basis of the speaker’s identity. Under the Michigan law, any person or group other than a corporation may engage in political debate over candidate elections; but corporations, even nonprofit corporations that have unique views of vital importance to the electorate, must remain mute. Our precedents condemn this censorship. See Bellotti, supra, at 784-786; Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972) (invalidating state statute that prohibited picketing near certain buildings but allowed certain labor picketers); Carey v. Brown, 447 U. S. 455 (1980). The protection afforded core political speech is not diminished because the speaker is a nonprofit corporation. Even in the case of a for-profit corporation, we have upheld the right to speak on ballot issues. The Bellotti Court stated: “If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is" }, { "docid": "23140397", "title": "", "text": "facts and the law. It is wrong on the law because there is utterly no precedent for the novel and facially implausible proposition that the First Amendment has anything to do with government funding that — though it does not actually abridge anyone’s speech — “distorts an existing medium of expression.” None of the three cases cited by the Court mentions such an odd principle. In Ro-senberger v. Rector and Visitors of Unir, of Va., the point critical to the Court’s analysis was not, as the Court would have it, that it is part of the “usual functioning” of student newspapers to “expres[s] many different points of view,” ante, at 543 (it surely is not), but rather that the spending program itself Yis,& been created “to encourage a diversity of views from private speakers,” 515 U. S., at 834. What could not be distorted was the public forum that the spending program had created. As for Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666 (1998), that case discussed the nature of television broadcasting, not to determine whether government regulation would alter its “usual functioning” and thus violate the First Amendment (no government regulation was even at issue in the case), but rather to determine whether state-owned television is a “public forum” under our First Amendment jurisprudence. Id., at 673-674. And finally, the passage the Court cites from FCC v. League of Women Voters of Cal., 468 U. S. 364, 396-397 (1984), says nothing whatever about “using the forum [of public radio] in an unconventional way to suppress speech inherent in the nature of the medium,” ante, at 543. It discusses why the Government’s asserted interest in “preventing [public radio] stations from becoming a privileged outlet for the political and ideological opinions of station owners and managers,” 468 U. S., at 396 (internal quotation marks omitted), was insubstantial and thus could not justify the statute’s restriction on editorializing. Even worse for the Court, after invalidat ing the restriction on this conventional First Amendment ground, League of Women Voters goes on to say that “[o]f course,” the restriction on editorializing" }, { "docid": "22791822", "title": "", "text": "expression concerning one particular subject matter — labor disputes — while prohibiting discussion of all other issues. Although our opinion stressed that “it is the content of the speech that determines whether it is within or without the statute’s blunt prohibition,” 447 U. S., at 462, we. appended a footnote to that sentence explaining that it was the fact that the statute placed a prohibition on discussion of particular topics, while others were allowed, that was constitutionally repugnant. Regulation of the subject matter of messages, though not as obnoxious as viewpoint-based regulation, is also an objectionable form of content-based regulation. Consolidated Edison Co. ofN. Y. v. Public Serv. Comm’n of N. Y, 447 U. S. 530, 538 (1980). The Colorado statute’s regulation of the location of protests, education, and counseling is easily distinguishable from Carey. It places no restrictions on — and clearly does not prohibit — either a particular viewpoint or any subject matter that may be discussed by a speaker. Rather, it simply establishes a minor place restriction on an extremely broad category of communications with unwilling listeners. Instead of drawing distinctions based on the subject that the approaching speaker may wish to address, the statute applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries. Each can attempt to educate unwilling listeners on any subject, but without consent may not approach within eight feet to do so. The dissenters, nonetheless, contend that the statute is not “content neutral.” As Justice Scalia points out, the vice of content-based legislation in this context is that “it lends itself” to being “'used for invidious thought-control purposes.’ ” Post, at 743. But a statute that restricts certain categories of speech only lends itself to invidious use if there is a significant number of communications, raising the same problem that the statute was enacted to solve, that fall outside the statute’s scope, while others fall inside. E. g., Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). Here, the statute’s restriction seeks to protect those who enter a health care facility from the harassment, the nuisance, the" }, { "docid": "22181018", "title": "", "text": "Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic”). Second, the Act discriminates on the basis of the speaker’s identity. Under the Michigan law, any person or group other than a corporation may engage in political debate over candidate elections; but corporations, even nonprofit corporations that have unique views of vital importance to the electorate, must remain mute. Our precedents condemn this censorship. See Bellotti, supra, at 784-786; Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972) (invalidating state statute that prohibited picketing near certain buildings but allowed certain labor picketers); Carey v. Brown, 447 U. S. 455 (1980). The protection afforded core political speech is not diminished because the speaker is a nonprofit corporation. Even in the case of a for-profit corporation, we have upheld the right to speak on ballot issues. The Bellotti Court stated: “If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to deci sionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” 435 U. S., at 777 (footnotes omitted). By using distinctions based upon both the speech and the speaker, the Act engages in the rawest form of censorship: the State censors what a particular segment of the political community might say with regard to candidates who stand for election. The Court’s holding cannot be reconciled with the principle that “ ‘legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment.’” Meyer v. Grant, 486 U. S. 414, 428 (1988), quoting Buckley v. Valeo, supra, at 50. B The second censorship scheme validated by today’s holding is the one imposed by the Court. In FEC v." }, { "docid": "22738469", "title": "", "text": "additional force because it is the identity of corporations, rather than individuals, that the Legislature has taken into account. As we have unanimously observed, legislatures are entitled to decide “that the special characteristics of the corporate structure require particularly careful regulation” in an electoral context. NRWC, 459 U. S., at 209-210. Not only has the distinctive potential of corporations to corrupt the electoral process long been recognized, but within the area of campaign finance, corporate spending is also “furthest from the core of political expression, since corporations’ First Amendment speech and association interests are derived largely from those of their members and of the public in receiving information,” Beaumont, 539 U. S., at 161, n. 8 (citation omitted). Campaign finance distinctions based on corporate identity tend to be less worrisome, in other words, because the “speakers” are not natural persons, much less members of our political community, and the governmental interests are of the highest order. Furthermore, when corporations, as a class, are distinguished from noncorporations, as a class, there is a lesser risk that regulatory distinctions will reflect invidious discrimination or political favoritism. If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “ ‘enhance the relative voice’ ” of some (i. e., humans) over others (i. e., nonhumans). Ante, at 349-350 (quoting Buckley, 424 U. S., at 49). Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech. In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most" }, { "docid": "22738332", "title": "", "text": "as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (Kennedy, J., concurring in judgment), the quoted language from WRTL provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. See, e. g., United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) (striking dowm content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content. Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each. The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e. g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683 (1986) (protecting the “function of public school education”); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 129 (1977) (furthering “the legitimate penological objectives of the corrections system” (internal quotation marks omitted)); Parker v. Levy, 417 U. S. 733, 759 (1974) (ensuring “the capacity of the Government to discharge its [military] responsibilities” (internal quotation marks omitted));" }, { "docid": "22895986", "title": "", "text": "sustain freedom of expression, Ro~ senberger teaches that the First Amendment forbids decisions based on viewpoint popularity. So long as Congress chooses to subsidize expressive endeavors at large, it has no business requiring the NEA to turn down funding applications of artists and exhibitors who devote their “freedom of thought, imagination, and inquiry” to defying our tastes, our beliefs, or our values. It may not use the NEA’s purse to “suppres[s] . . . dangerous ideas.” Regan v. Taxation with Representation of Wash., supra, at 548 (internal quotation marks omitted). The Court says otherwise, claiming to distinguish Rosen-berger on the ground that the student activities funds in that case were generally available to most applicants, whereas NEA funds are disbursed selectively and competitively to a ehoice few. Ante, at 586. But the Court in Rosenberger anticipated and specifically rejected just this distinction when it held in no uncertain terms that “[t]he government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity.” 515 U. S., at 835. Scarce money demands choices, of course, but choices “on some acceptable [viewpoint] neutral principle,” like artistic excellence and artistic merit; “nothing in our decision[s] in- dieate[s] that scarcity would give the State the right to exercise viewpoint discrimination that is otherwise impermissible.” Ibid.; see also Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666, 676 (1998) (scarcity of air time does not justify viewpoint-based exclusion of candidates from a debate on public television; neutral selection criteria must be employed). If the student activities fund at issue in Rosen-berger had awarded competitive, merit-based grants to only 50%, or even 5%, of the applicants, on the basis of “journalistic merit taking into consideration the message of the newspaper,” it is obvious beyond peradventure that the Court would not have come out differently, leaving the University free to refuse funding after considering a publication’s Christian perspective. A word should be said, finally, about a proposed alternative to this failed analogy. As the Solicitor General put it at oral argument, “there is something unique . . . about the Government funding of the" }, { "docid": "22738465", "title": "", "text": "restrict political speech based on the speaker’s . . . identity.” Ante, at 346; accord, ante, at 319, 340-341, 342-343, 346-347, 347, 348, 349, 350, 364, 365. The case on which it relies for this proposition is First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978). As I shall explain, infra, at 442-446, the holding in that case was far narrower than the Court implies. Like its paeans to unfettered discourse, the Court’s denunciation of identity-based distinctions may have rhetorical appeal but it obscures reality. “Our jurisprudence over the past 216 years has rejected an absolutist interpretation” of the First Amendment. WRTL, 551 U. S., at 482 (opinion of Roberts, C. J.). The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech, or of the press.” Apart perhaps from measures designed to protect the press, that text might seem to permit no distinctions of any kind. Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems. In contrast to the blanket rule that the majority espouses, our cases recognize that the Government’s interests may be more or less compelling with respect to different classes of speakers, cf. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585 (1983) (“[Djifferential treatment” is constitutionally suspect “unless justified by some special characteristic” of the regulated class of speakers (emphasis added)), and that the constitutional rights of certain categories of speakers, in certain contexts, “‘are not automatically coextensive with the rights’ ” that are normally accorded to members of our soci ety, Morse v. Frederick, 551 U. S. 393, 396-397, 404 (2007) (quoting Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986)). The free speech guarantee" }, { "docid": "22738375", "title": "", "text": "the raising and spending of soft money, the incentives ... to exploit [26 U. S. C. § 527] organizations will only increase”). Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials. Rapid changes in technology — and the. creative dynamic inherent in the concept of free expression — counsel against upholding a law that restricts political speech in certain media or by certain speakers. See Part II-C, supra. Today, 30-second television ads may be the most effective way to convey a political message. See McConnell, supra, at 261 (opinion of SCALIA, J.). Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at 249. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech. No serious reliance interests are at stake. As the Court stated in Payne v. Tennessee, 501 U. S. 808, 828 (1991), reliance interests are important considerations in property and contract cases, where parties may have acted in conformance with existing legal rules in order to conduct transactions. Here, though, parties, have been prevented from acting— corporations have been banned from making independent expenditures. Legislatures may have enacted bans on corporate expenditures believing that those bans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us" }, { "docid": "22738466", "title": "", "text": "identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems. In contrast to the blanket rule that the majority espouses, our cases recognize that the Government’s interests may be more or less compelling with respect to different classes of speakers, cf. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585 (1983) (“[Djifferential treatment” is constitutionally suspect “unless justified by some special characteristic” of the regulated class of speakers (emphasis added)), and that the constitutional rights of certain categories of speakers, in certain contexts, “‘are not automatically coextensive with the rights’ ” that are normally accorded to members of our soci ety, Morse v. Frederick, 551 U. S. 393, 396-397, 404 (2007) (quoting Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986)). The free speech guarantee thus does not render every other public interest an illegitimate basis for qualifying a speaker’s autonomy; society could scarcely function if it did. It is fair to say that our First Amendment doctrine has “frowned on” certain identity-based distinctions, Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 47, n. 4 (1999) (Stevens, J., dissenting), particularly those that may reflect invidious discrimination or preferential treatment of a politically powerful group. But it is simply incorrect to suggest that we have prohibited all legislative distinctions based on identity or content. Not even close. The election context is distinctive in many ways, and the Court, of course, is right thát the First Amendment closely guards political speech. But in this context, too, the authority of legislatures to enact viewpoint-neutral regulations based on content and identity is well settled. We have, for example, allowed state-run broadcasters to exclude independent candidates from televised debates. Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666 (1998). We have upheld statutes that prohibit the distribution or display" }, { "docid": "22172055", "title": "", "text": "religious message, it would be harder to attribute an endorsement of religion to the State”). Finally, the Court seems to demand that a government policy be completely neutral as to content or be considered one that endorses religion. See ante, at 305. This is undoubtedly a new requirement, as our Establishment Clause jurisprudence simply does not mandate “content neutrality.” That concept is found in our First Amendment speech eases and is used as a guide for determining when we apply strict scrutiny. For example, we look to “content neutrality” in reviewing loudness restrictions imposed on speech in public forums, see Ward v. Rock Against Racism, 491 U. S. 781 (1989), and regulations against picketing, see Boos v. Barry, 485 U. S. 312 (1988). The Court seems to think that the fact that the policy is not content neutral somehow controls the Establishment Clause inquiry. See ante, at 305. But even our speech jurisprudence would not require that all public school actions with respect to student speech be content neutral. See, e. g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986) (allowing the imposition of sanctions against a student speaker who, in nominating a fellow student for elective office during an assembly, referred to his candidate in terms of an elaborate sexually explicit metaphor). Schools do not violate the First Amendment every time they restrict student speech to certain categories. But under the Court’s view, a school policy under which the student body president is to solemnize the graduation ceremony by giving a favorable introduction to the guest speaker would be facially unconstitutional. Solemnization “invites and encourages” prayer and the policy’s content limitations prohibit the student body president from giving a solemn, yet nonreligious, message like “commentary on United States foreign policy.” See ante, at 306. The policy at issue here may be applied in an unconstitutional manner, but it will be time enough to invalidate it if that is found to be the case. I would reverse the judgment of the Court of Appeals. The Court rightly points out that in facial challenges in the Establishment" }, { "docid": "22738467", "title": "", "text": "thus does not render every other public interest an illegitimate basis for qualifying a speaker’s autonomy; society could scarcely function if it did. It is fair to say that our First Amendment doctrine has “frowned on” certain identity-based distinctions, Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 47, n. 4 (1999) (Stevens, J., dissenting), particularly those that may reflect invidious discrimination or preferential treatment of a politically powerful group. But it is simply incorrect to suggest that we have prohibited all legislative distinctions based on identity or content. Not even close. The election context is distinctive in many ways, and the Court, of course, is right thát the First Amendment closely guards political speech. But in this context, too, the authority of legislatures to enact viewpoint-neutral regulations based on content and identity is well settled. We have, for example, allowed state-run broadcasters to exclude independent candidates from televised debates. Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666 (1998). We have upheld statutes that prohibit the distribution or display of campaign materials near a polling place. Burson v. Freeman, 504 U. S. 191 (1992). Although we have not reviewed them directly, we have never cast doubt on laws that place special restrictions on campaign spending by foreign nationals. See, e. g., 2 U. S. C. § 441e(a)(1). And we have consistently approved laws that bar Government employees, but not others, from contributing to or participating in political activities. See n. 45, supra. These statutes burden the political expression of one class of speakers, namely, civil servants. Yet we have sustained them on the basis of longstanding practice and Congress’ reasoned judgment that certain regulations which leave “untouched full participation ... in political decisions at the ballot box,” Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 556 (1973) (internal quotation marks omitted), help ensure that public officials are “sufficiently free from improper influences,” id., at 564, and that “confidence in the system of representative Government is not... eroded to a disastrous extent,” id., at 565. The same logic applies to this case with" }, { "docid": "2308359", "title": "", "text": ". The Unions also suggest Rosenberger requires finding abridgment of free speech when a speech subsidy makes speakerbased distinctions. But that case actually recognizes just the opposite: Rosenberger explained that Regan, in upholding a speech subsidy, \"relied on a distinction based on preferential treatment of certain speakers—veterans' organizations—and not a distinction based on the content or messages of those groups' speech.” Rosenberger, 515 U.S. at 834, 115 S.Ct. 2510. Thus, Rosenberger actually reaffirms Regan 's determination that government may subsidize the speech of some speakers but not others. . The Unions, of course, suggest that the relationship between the unions’ political views and status as a public safety union is no mere coincidence. But, as explained in the next section, we cannot conclude Act 10 is a neutral fagade for viewpoint discrimination. . The dissent suggests that Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 811, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), compels a searching look beyond the text of the statute. (Dissenting op. at 662-63, 664.) We do not read Cornelius that broadly. Cornelius simply ‘'decline [d] to decide in the first instance whether the exclusion of respondents [from the Combined Federal Campaign] was impermissibly motivated by a desire to suppress a particular point of view.” Id. at 812-13, 105 S.Ct. 3439. “Respondents,” the Court noted, were \"free to pursue this contention on remand.” Id. at 813, 105 S.Ct. 3439. We find nothing in this passage or any other language from Cornelius that encourages federal courts to search for some invidious motive when confronted with a facial challenge to a facially-neutral statute. . We see viewpoint neutrality as a broadly applicable requirement to all laws implicating First Amendment concerns with a test that does not vary. Thus, unlike the dissent, we do not distinguish among cases analyzing viewpoint neutrality in the time, place, and manner context and the circumstances present here. Moreover, time, place, and manner regulations of speech must satisfy additional requirements beyond those imposed on regulations of nonpublic forums. While regulation of nonpublic forums requires only viewpoint neutrality and \"reasonable[ness] in light of" }, { "docid": "22994515", "title": "", "text": "designated public fora as from traditional forums, Lee, 505 U. S., at 678, there is no reason the kind of selective exclusion we condemned in Mosley should be tolerated here. The plurality acknowledges content-based exclusions from the right to use a common carrier could violate the First Amendment. It tells us, however, that it is wary of analogies to doctrines developed elsewhere, and so does not address this issue. Ante, at 749. This newfound aversion to analogical reasoning strikes at a process basic to legal analy sis. See E. Levi, An Introduction to Legal Reasoning 1-2 (1949). I am not suggesting the plurality should look far afield to other areas of law; these are settled First Amendment doctrines dealing with state action depriving certain speakers of protections afforded to all others. In all events, the plurality’s unwillingness to consider our public-forum precedents does not relieve it of the burden of explaining why strict scrutiny should not apply. Except in instances involving well-settled categories of proscribable speech, see R. A. V., 505 U. S., at 382-390, strict scrutiny is the baseline rule for reviewing any content-based discrimination against speech. The purpose of forum analysis is to determine whether, because of the property or medium where speech takes place, there should be any dispensation from this rule. See Consolidated Edison Co. of N. Y v. Public Service Comm’n of N. Y, 447 U. S. 530, 538-539 (1980). In the context of government property, we have recognized an exception “[w]here the government is acting as a proprietor, managing its internal operations, rather than acting as lawmaker with the power to regulate or license,” and in those circumstances, we have said, regulations of speech need only be reasonable and viewpoint neutral. Lee, supra, at 678-679. Here, of course, the Government has not dedicated the cable operator’s property for leased access to serve some proprietary function of its own; it has done so to provide a forum for a vital class of programmers who otherwise would be excluded from cable television. The question remains whether a dispensation from strict scrutiny might be appropriate because §" }, { "docid": "22756294", "title": "", "text": "in the basis for the University’s funding decision, it must be that the University is impermissibly distinguishing among competing viewpoints, ante, at 829-830, citing, inter alia, Perry, supra, at 46; see also Lamb’s Chapel, 508 U. S., at 392-393 (subject-matter distinctions permissible in controlling access to limited public forum if reasonable and viewpoint neutral); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) (similar); Regan, supra, at 548. The issue whether a distinction is based on viewpoint does not turn simply on whether a government regulation happens to be applied to a speaker who seeks to advance a particular viewpoint; the issue, of course, turns on whether the burden on speech is explained by reference to viewpoint. See Cornelius, supra, at 806 (“[T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject”). As when deciding whether a speech restriction is content based or content neutral, “[t]he government’s purpose is the controlling consideration.” Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989); see also ibid. (content neutrality turns on, inter alia, whether a speech restriction is “justified without reference to the content of the regulated speech”) (internal quotation marks and citations omitted) (emphasis deleted). So, for example, a city that enforces its excessive noise ordinance by pulling the plug on a rock band using a forbidden amplification system is not guilty of viewpoint discrimination simply because the band wishes to use that equipment to espouse antiracist views. Accord, Rock Against Racism, supra. Nor does a municipality’s decision to prohibit political advertising on bus placards amount to viewpoint discrimination when in the course of applying this policy it denies space to a person who wishes to speak in favor of a particular political candidate. Accord, Lehman v. Shaker Heights, 418 U. S. 298, 304 (1974) (plurality opinion). Accordingly, the prohibition on viewpoint discrimination serves that important purpose of the Free Speech Clause, which is to bar the government from skewing public debate. Other things being equal, viewpoint" }, { "docid": "22738468", "title": "", "text": "of campaign materials near a polling place. Burson v. Freeman, 504 U. S. 191 (1992). Although we have not reviewed them directly, we have never cast doubt on laws that place special restrictions on campaign spending by foreign nationals. See, e. g., 2 U. S. C. § 441e(a)(1). And we have consistently approved laws that bar Government employees, but not others, from contributing to or participating in political activities. See n. 45, supra. These statutes burden the political expression of one class of speakers, namely, civil servants. Yet we have sustained them on the basis of longstanding practice and Congress’ reasoned judgment that certain regulations which leave “untouched full participation ... in political decisions at the ballot box,” Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 556 (1973) (internal quotation marks omitted), help ensure that public officials are “sufficiently free from improper influences,” id., at 564, and that “confidence in the system of representative Government is not... eroded to a disastrous extent,” id., at 565. The same logic applies to this case with additional force because it is the identity of corporations, rather than individuals, that the Legislature has taken into account. As we have unanimously observed, legislatures are entitled to decide “that the special characteristics of the corporate structure require particularly careful regulation” in an electoral context. NRWC, 459 U. S., at 209-210. Not only has the distinctive potential of corporations to corrupt the electoral process long been recognized, but within the area of campaign finance, corporate spending is also “furthest from the core of political expression, since corporations’ First Amendment speech and association interests are derived largely from those of their members and of the public in receiving information,” Beaumont, 539 U. S., at 161, n. 8 (citation omitted). Campaign finance distinctions based on corporate identity tend to be less worrisome, in other words, because the “speakers” are not natural persons, much less members of our political community, and the governmental interests are of the highest order. Furthermore, when corporations, as a class, are distinguished from noncorporations, as a class, there is a lesser risk that" } ]

[ { "docid": "9752478", "title": "", "text": "453 U.S. at 461, 101 S.Ct. at 2864 (citing United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973)) (emphasis added). . We need not consider whether the time span between an automobile-related arrest and the initiation of a warrantless search of the passenger compartment might become so protracted as to raise judicial eyebrows in an exceptional case, see, e.g., United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987) (distinguishing invalid automobile search, occurring 30-45 minutes after arrest, from searches which “followed closely on the heels of the arrest”), since this is anything but an exceptional case. The officers initiated the three-minute contemporaneous search immediately after Doward was placed under arrest, and completed it within thirty seconds after he was transported from the scene. Compare United States v. Lugo, 978 F.2d 631,. 634 (10th Cir.1992) (invalidating search initiated after arrestee left scene) with United States v. McCrady, 714 F.2d 868, 871-72 (8th Cir.1985) (upholding search initiated after. arrestee left scene). . Indeed, as the dissent noted, see Belton, 453 U.S. at 468, 101 S.Ct. at 2868 (Brennan, J., dissenting), \"the result would presumably be the same even if [the police officer] had handcuffed Belton ... in the patrol car....” See also supra note 1. . Although such considerations are not determinative, the unpredictable developments ultimately confronting the officers in this case clearly vindicate the Belton rationale. The male passenger in the Ford Mustang remained in close proximity to the vehicle during the arrest and the ensuing search. Moreover, Doward's daughter, who also — unbeknownst to the officers — was sub ject to an outstanding arrest warrant, unexpectedly approached the officers from out of the gathering crowd. With only two officers available to search the vehicle and deal with this potentially dangerous situation, a decisional rule which would require judicial second-guessing of the need to continue the passenger-compartment search after Doward had been transported from the scene would eviscerate Belton's bright-line rule. Furthermore, the Belton rationale would be undermined were a temporal limit to be drawn, as Doward urges, after Officer Tareco’s valid" } ]

[ { "docid": "12110141", "title": "", "text": "when the officers approached, that he was approximately three feet away from the bags when they were searched, and that he was not handcuffed. The woman accompanying Morales was approximately six feet away and she was not handcuffed either. Regardless of whether the bags were easily accessible to Morales, they were within the area of “immediate control” as defined by Chimel, Belton, and the cases of this court. Morales nonetheless argues that Chadwick establishes that when police have reduced a closed container to their “exclusive control,” they must secure a warrant before opening and searching that container. See Chadwick, 433 U.S. at 15-16, 97 S.Ct. at 2485-86. Morales’ argument fails to recognize, however, the distinction between searches that are contemporaneous with arrest and those that are “ ‘remote in time or place from the arrest.’ ” Id. at 15, 97 S.Ct. at 2485. The Belton Court pointed out that the search in Chadwick occurred more than one hour after police gained exclusive control of the arrestee’s footlocker; the search thus could not be justified as incident to the arrest. Belton, 453 U.S. at 462, 101 S.Ct. at 2865. The Belton Court rejected the application of the “exclusive control” test to a search that is contemporaneous with the arrest, stating: It seems to have been the theory of the Court of Appeals that the search and seizure in the present case could not have been incident to the respondent’s arrest, because Trooper Nicot, by the very act of searching the respondent’s jacket and seizing the contents of its pocket, had gained “exclusive control” of them_ But under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee’s person, an officer may be said to have reduced that article to his “exclusive control.” 453 U.S. at 461-462 n. 5, 101 S.Ct. at 2864-65 n. 5. (citation omitted). Belton thus abolishes the exclusive control distinction of Chadwick when the search is contemporaneous with the arrest. See United States v. Johnson, 846 F.2d 279, 282 (5th Cir.), cert. denied," }, { "docid": "22974718", "title": "", "text": "Inside, they found a gun. The district court suppressed that evidence, but we later reversed. We defined the issue pertaining to the seizure as follows: “whether the police had probable cause to search the vehicle as distinct from any container found within [it].” Rasool, 657 F.2d at 585. We ultimately held that the police had probable cause for the search. We found in Rasool that the Belton court had been careful to note that its holding merely applied the teachings of Chimel to the special circumstances presented by an automobile search. See id. at 587, citing Belton, 453 U.S. at 460, 101 S.Ct. 2860. We emphasized that the Court characterized its holding in Belton as “doing no more than determin(ing) the meaning of Chimel’s principles in this particular and problematic content. It in no way alters the fundamental principles established in ... Chimel.... ” Rasool, 657 F.2d at 588 (emphasis added), quoting Belton, 453 U.S. at 460 n. 3, 101 S.Ct. 2860. Thus, as Judge Wellford points out in his dissent in Davis v. Robbs, 794 F.2d 1129 (6th Cir.1986), “Belton was a case concerning the application of the search incident to arrest exception to the search of an automobile.” Davis, 794 F.2d at 1132 n. 2 (Wellford, J., dissenting). It does not apply in the context of a search inside of a private home where “Fourth Amendment rights are preeminent....” Id. at 1132. The majority in Davis did affirm a search incident to arrest although the arrestee was handcuffed and placed in a squad car prior to the seizure of a rifle in his house. However, it is clear that the Davis majority strayed beyond the parameters that the Supreme Court tried to erect in Belton. We are neither persuaded by the majority’s analysis in Davis nor bound by its holding. In United States v. Cotton, 751 F.2d 1146 (10th Cir.1985), a car was searched even though the arrestees had been handcuffed and removed from the car prior to the search. However, since Cotton involved an automobile, it was therefore governed by the special rules which the Supreme Court" }, { "docid": "10270537", "title": "", "text": "arrest.” Id. The relevant distinction turns not upon the moment of the arrest versus the moment of the search but upon whether the arrest and search are so separated in time or by intervening events that the latter cannot fairly be said to have been incident to the former. See, e.g., Chadwick, 433 U.S. at 15, 97 S.Ct. at 2485-86 (search conducted long after defendant taken into custody held not incident to arrest); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964) (search not incident to arrest if remote in time from arrest). Indeed, if the courts were to focus exclusively upon the moment of the search, we might create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer. That danger is not necessarily terminated by the arrest. As the Supreme Court pointed out in Belton responding to an analogous argument, “no search or seizure incident to a lawful custodial arrest would ever be valid [if] by seizing an article ... an officer may be said to have reduced that article to his ‘exclusive control’ ” — and thus to have ended the defendant’s control. 453 U.S. at 461-62 n. 5, 101 S.Ct. at 2865 n. 5. Likewise if by arresting and securing the defendant, an officer may be said to have put the area where the arrest took place under his own control — and thus outside the arrestee’s “exclusive control”— then, the law would truly be, as Mr. Bumble said, “a ass.” Abdul-Saboor insists nonetheless that there is no sound basis upon which to conclude that the drugs and guns were within his immediate control either at the time of his arrest or at the time of the search. He was arrested at his apartment door when he first answered the marshals’ knock. All of the relevant contraband was in the bedroom. Deputy Parker testified that at the time of the disputed (second) search of the bedroom, Abdul-Saboor was handcuffed and" }, { "docid": "3672702", "title": "", "text": "searching the pickup truck after Brothers’ arrest. As indicated above, the district court denied the motion on the basis that the search of the truck was in accord with Fourth Amendment requirements as a search incident to Brothers’ arrest, as approved in New York v. Belton, 453 U.S. 454, 460,101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). According to the district court, all testimony at the suppression hearing was in agreement “that the search occurred very shortly after Brothers was handcuffed.” Order at 3, R. Vol. I, tab 26. Brothers objects that the search did not meet the requirements of a valid search incident to an arrest because, at the time of the search, “Mr. Brothers was outside the vehicle and ... he was handcuffed behind his back” and “made no attempt or threat to destroy evidence.” Appellant’s Br. at 10-11. “ “When reviewing a district court’s denial of a motion to suppress, we accept its factual findings unless clearly erroneous and view the evidence in the light most favorable to the government.’ ” United States v. Tueller, 349 F.3d 1235, 1237 (10th Cir.2003) (quoting United States v. Hargus, 128 F.3d 1358, 1361 (10th Cir.1997)). However, “ ‘the ultimate determination of Fourth Amendment reasonableness is a question of law which we review de novo.’ ” Id. (quoting United States v. Hill, 199 F.3d 1143, 1147 (10th Cir.1999)). Here, we agree with the district court that Officer Kennedy’s search was valid as a search incident to a custodial arrest. In Belton, the Supreme Court established the bright-line rule that, “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460, 101 S.Ct. 2860 (footnotes omitted); see Thornton v. United States, 541 U.S. 615, 620-21, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004); United States v. Humphrey, 208 F.3d 1190, 1202 (10th Cir.2000). This rule applies “without regard to the fact that the search occurred after [the][d]efendant had been restrained.” Id.; see also United States v. Cotton, 751 F.2d 1146," }, { "docid": "12110142", "title": "", "text": "incident to the arrest. Belton, 453 U.S. at 462, 101 S.Ct. at 2865. The Belton Court rejected the application of the “exclusive control” test to a search that is contemporaneous with the arrest, stating: It seems to have been the theory of the Court of Appeals that the search and seizure in the present case could not have been incident to the respondent’s arrest, because Trooper Nicot, by the very act of searching the respondent’s jacket and seizing the contents of its pocket, had gained “exclusive control” of them_ But under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee’s person, an officer may be said to have reduced that article to his “exclusive control.” 453 U.S. at 461-462 n. 5, 101 S.Ct. at 2864-65 n. 5. (citation omitted). Belton thus abolishes the exclusive control distinction of Chadwick when the search is contemporaneous with the arrest. See United States v. Johnson, 846 F.2d 279, 282 (5th Cir.), cert. denied, 488 U.S. 995, 109 S.Ct. 562, 102 L.Ed.2d 587 (1988). Consequently, our earlier decisions in Schleis and Stevie, to the extent that they held that a police officer’s “exclusive control” is enough to trigger the warrant requirement, can no longer be considered good law in light of Belton. See Schleis, 582 F.2d at 1172; Stevie, 582 F.2d at 1179-80. In sum, Chimel, Chadwick, and Belton establish the permissible scope of a search incident to arrest — namely, that the search must fall within the arrestee’s area of “immediate control” and must be contemporaneous with the arrest. Searches that are similar to the one in the case before us have been routinely upheld in other circuits. See, e.g., United States v. Andersson, 813 F.2d 1450, 1455-56 (9th Cir.1987) (search of suitcase on bed next to arrestee valid because it occurred at about the same time as arrest); United States v. Herrera, 810 F.2d 989, 990 (10th Cir.1987) (per curiam); United States v. Rosenthal, 793 F.2d 1214, 1232 (11th Cir.) (search of handbag incident to arrest was" }, { "docid": "2333793", "title": "", "text": "at the time of arrest, of whether the arrestee, handcuffed or not, could reach into the ear to seize some item within it, either as a weapon or to destroy evidence, or for some altogether different reason____ The law simply does not require the arresting officer to mentally sift through all these possibilities during an arrest, before deciding whether he may lawfully search the vehicle. United States v. Karlin, 852 F.2d 968, 971 (7th Cir.1988), cert. denied, 489 U.S. 1021, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989) (quoting United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir.1985)); see also Adams, 26 F.3d at 705; Belton, 453 U.S. at 460, 101 S.Ct. at 2864. Sholola argues that the concerns for officer safety and preserving evidence which underlie Chimel and Belton do not apply to his case, because “[a]t the time the officers conducted their search of the vehicle, [he] was handcuffed and in the rear of a locked squad car from which he could not exit.” We have consistently rejected this argument, as have other circuits, because we recognize that very often “in instances where occupants of a car are arrested, they will be outside the ear and will have been placed under some mea sure of security before the ear is searched.” Karlin, 852 F.2d at 971; see also United States v. Willis, 37 F.3d 313 (7th Cir.1994); United States v. Arango, 879 F.2d 1501 (7th Cir.1989), cert. denied, 493 U.S. 1069, 110 S.Ct. 1111, 107 L.Ed.2d 1019 (1990). Sholola has offered no compelling reasons for abandoning our clear precedent in this area, which holds that “officers may conduct valid searches incident to arrest even when the officers have secured the suspect[ ] in a squad car and rendered [him] unable to reach any weapon or destroy evidence.” Willis, 37 F.3d at 317 (emphasis added). In concluding our Fourth Amendment analysis of the automobile search, we note that although the Government has chosen to characterize this search as a “search incident to arrest,” it was also valid as a routine post-arrest “inventory search,” of the kind approved by the" }, { "docid": "22772777", "title": "", "text": "procedures” require that suspects be handcuffed and put in squad cars, then police should handcuff suspects, put them in squad cars, and not conduct the search. Indeed, if an officer leaves a suspect unrestrained nearby just to manufacture authority to search, one could argue that the search is. unreasonable precisely because the dangerous conditions justifying it existed only by virtue of the officer’s failure to follow sensible procedures. The third defense of the search is that, even though the arrestee posed no risk here, Belton searches in general are reasonable, and the benefits of a bright-line rule justify upholding that small minority of searches that, on their particular facts, are not reasonable. The validity of this argument rests on the accuracy of Belton’s claim that the passenger compartment is “in fact generally, even if not inevitably,” within the suspect’s immediate control. 453 U. S., at 460. By the United States’ own admission, however, “[t]he practice of restraining an arrestee on the scene before searching a car that he just occupied is so prevalent that holding that Belton does hot apply in that setting would ... 'largely render Belton a dead letter.’ ” Brief for United States 36-37 (quoting Wesley, supra, at 548). Reported cases involving this precise factual scenario — a motorist handcuffed and secured in the back of a squad car when the search takes place — are legion. See, e. g., United States v. Doward, 41 F. 3d 789, 791 (CA1 1994); United States v. White, 871 F. 2d 41, 44 (CA6 1989); Mitchell, supra, at 152; United States v. Snook, 88 F. 3d 605, 606 (CA8 1996); United States v. McLaughlin, 170 F. 3d 889, 890 (CA9 1999); United States v. Humphrey, 208 F. 3d 1190, 1202 (CA10 2000); Wesley, supra, at 544; see also 3 W. LaFave, Search and Seizure § 7.1(c), pp. 448-449, n. 79 (3d ed. 1996 and Supp. 2004) (citing cases). Some courts uphold such searches even when the squad car carrying the handcuffed arrestee has already left the scene. See, e. g., McLaughlin, supra, at 890-891 (upholding search because only five minutes" }, { "docid": "11497340", "title": "", "text": "occupant of an automobile, they may “as a contemporaneous incident of that arrest, search the passenger compartment,” even if the occupant has been removed and is no longer in the car at the time of the search. 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). We have since rejected the argument that Belton applies only to automobiles, and affirmed that the area under a defendant’s “immediate control” for Chimel purposes must be examined as of the time the arrest occurs. See United States v. Brown, 671 F.2d 585, 587 (D.C.Cir.1982). In Brown, we validated the search of a pouch taken from a defendant at the time of arrest, even though the search took place after the pouch was moved out of the reach of defendant’s control. As long as a search is “contemporaneous with” and an “integral part of’ a lawful arrest, we held, the police may search a container that was within reach “when the arrest occurs, even if the officer has since seized it and gained exclusive control over it.” Id. at 587; see United States v. Tavolacci, 895 F.2d 1423, 1429 (D.C.Cir.1990) (citing Brown). Our recent decision in United States v. Abdul-Saboor makes the same point, and is on all fours with the case at bar. There, deputy United States marshals took the defendant into custody in a bedroom, removed him from the ‘ room, handcuffed him, and seated him in a chair approximately “four feet outside the bedroom doorway.” 85 F.3d at 666. A marshal then returned to the bedroom and seized two weapons. After leaving the bedroom to make necessary arrangements, the marshal again returned to search the bedroom, this time finding drugs and additional guns. We upheld both searches as incident to the arrest. Reviewing the history of Belton and Brown, we concluded that the “determination of immediate control must be made when the arrest occurs.” Id. at 668. In so holding, we noted, that our view was in accord with that of our sister circuits. Indeed, we noted that making the test turn exclusively on the time of the search" }, { "docid": "22772778", "title": "", "text": "that Belton does hot apply in that setting would ... 'largely render Belton a dead letter.’ ” Brief for United States 36-37 (quoting Wesley, supra, at 548). Reported cases involving this precise factual scenario — a motorist handcuffed and secured in the back of a squad car when the search takes place — are legion. See, e. g., United States v. Doward, 41 F. 3d 789, 791 (CA1 1994); United States v. White, 871 F. 2d 41, 44 (CA6 1989); Mitchell, supra, at 152; United States v. Snook, 88 F. 3d 605, 606 (CA8 1996); United States v. McLaughlin, 170 F. 3d 889, 890 (CA9 1999); United States v. Humphrey, 208 F. 3d 1190, 1202 (CA10 2000); Wesley, supra, at 544; see also 3 W. LaFave, Search and Seizure § 7.1(c), pp. 448-449, n. 79 (3d ed. 1996 and Supp. 2004) (citing cases). Some courts uphold such searches even when the squad car carrying the handcuffed arrestee has already left the scene. See, e. g., McLaughlin, supra, at 890-891 (upholding search because only five minutes had elapsed since squad car left). The popularity of the practice is not hard to fathom. If Belton entitles an officer to search a vehicle upon arresting the driver despite having taken measures that eliminate any danger, what rational officer would not take those measures? Cf. Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wis. L. Rev. 657, 665-666 (citing police training materials). If it was ever true that the passenger compartment is “in fact generally, even if not inevitably,” within the arrestee’s immediate control at the time of the search, 453 U. S., at 460, it certainly is not true today. As one judge has put it: “[I]n our search for clarity, we have now abandoned our constitutional moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find.” McLaughlin, supra, at 894 (Trott, J.," }, { "docid": "5600108", "title": "", "text": "69 L.Ed.2d 768 (1981). In that case, the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460, 101 S.Ct. at 2864. Belton established a bright-line rule for automobile search cases. W. LaFave, Search and Seizure § 7.1 at 136 (2d ed. 1987). When an occupant of a vehicle is arrested, the police may lawfully search the passenger compartment. In United States v. White, 871 F.2d 41 (6th Cir.1989), this court held that Belton governs when the arrestee is removed from the car prior to the time of the search. White comports with other circuits that have addressed this issue. See, e.g., United States v. Karlin, 852 F.2d 968, 971-72 (7th Cir.1988), cert. denied, 489 U.S. 1021, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989); United States v. Cotton, 751 F.2d 1146, 1149 (10th Cir.1985); United States v. McCrady, 774 F.2d 868, 871-72 (8th Cir.1985). White, in following Belton, applies only where the police initiate contact while the defendant is within his automobile, but subsequently remove the arrestee. Indeed, Belton clearly limits its application to only those settings where an officer makes a custodial arrest “of the occupant of an automobile_” Belton, 453 U.S. at 460, 101 S.Ct. at 2864. (emphasis added). Because Strahan was approximately thirty feet from his vehicle when arrested, White and Belton are inapplicable. The police did not make an arrest of an occupant of a vehicle. Accordingly, the Chimel test governs. Because the passenger compartment of the vehicle was not within Strahan’s “immediate control” at the time of the arrest, the search was not incident to a lawful arrest, and suppression is proper. United States v. Fafowora, 865 F.2d 360 (D.C.Cir.1989), addressed this exact issue. In Fafowora, the officers arrested the defendants while the defendants were walking away from their jeep. The officers then searched the jeep and found drugs. The court held that the vehicle search was improper. The court reasoned that Belton did not apply" }, { "docid": "14920654", "title": "", "text": "to an arrest .if (1) the search is conducted at the scene of the arrest and (2) any delay in the search is a “reasonable” one. United States v. Han, 74 F.3d 537, 543 (4th Cir.), cert. denied, — U.S. -, 116 S.Ct. 1890, 135 L.Ed.2d 184 (1996); see also United States v. hitman, 739 F.2d 137, 139 (4th Cir.1984) (en banc) (upholding search of a bag immediately after arrest when the bag was no longer under the suspect’s control). Nelson contends that in this case the incident-to-arrest exception does not apply because the risks of danger and destruction of evidence had passed. He argues: The search of the bag was not contemporaneous with Mr. Nelson’s arrest, was not conducted when Mr. Nelson was within the same part of the house as the search, was not searched within the same room in which it was seized and was performed when Mr. Nelson was already handcuffed. While the need for the incident-to-arrest exception is indeed grounded on the need to protect law enforcement officers and evidence, the validity of such a search does not end at the instant the risks justifying the search come to an end. Even though the warrant exception is well grounded on the existence of exigent risks attending arrest, the pragmatic necessity of not invalidating such a search the instant the risks pass is well accepted. See, e.g., Belton, 453 U.S. at 462 n. 5, 101 S.Ct. at 2865 n. 5 (“[UJnder this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee’s person, an officer may be said to have reduced that article to his ‘exclusive control’”). Just as arresting officers need not determine that the defendant actually have a gun or actually intend to destroy evidence before conducting a search incident to arrest, they need not reorder the sequence of their conduct during arrest simply to satisfy an artificial rule that would link the validity of the search to the duration of the risks. Pragmatic necessity requires that we uphold the" }, { "docid": "22974711", "title": "", "text": "made any attempt to reach the closet and Lyons had collapsed and been revived before the search began. See Abdul-Saboor, 85 F.3d at 670, citing Lyons, 706 F.2d at 324. In contrast, the arrestee in Abdul-Saboor indicated that he would reach for a weapon if given the opportunity, and he was not suffering from any “infirmity that would impede his physical ability.” Abdul-Saboor, 85 F.3d at 670. Therefore, the court in Abdul-Saboor was persuaded by the arresting officers’ concern over Abdul-Saboor’s ability to grab concealed weapons, notwithstanding the fact that he was physically restrained. Significantly, the Abdul-Saboor court noted: Absent some objective basis upon which to conclude that the arresting officer had no reason to fear either the arrestee or the environment in which the arrest unfolded, we agree with our sister circuits that a search of the area where the arrest occurred in circumstances such as this case presents is a search incident to arrest. Id. (emphasis added). The court then cited numerous cases to support that proposition. However, the cases cited by Abdul-Saboor, as well as those cited by our dis senting colleague, either rely upon the Supreme Court’s analysis of the proper scope of a vehicular search in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), see United States v. Palumbo, 735 F.2d 1095, 1096-97 (8th Cir.1984) and United States v. Queen, 847 F.2d 346, 352-54 (7th Cir.1988), or directly involve vehicle searches, see United States v. Cotton, 751 F.2d 1146, 1147-48 (10th Cir.1985); and Virgin Islands v. Rasool, 657 F.2d 582, 585, 588-89 (3rd Cir.1981). As we shall discuss, vehicle searches are not analogous to the search here, and we will take this opportunity to clarify the difference between the two situations. The Supreme Court addressed the scope of a vehicular search in New York v. Belton, supra. There, a state trooper stopped a speeding car for a traffic citation. Upon approaching the car, the officer noticed four male occupants and also smelled the odor of burnt marijuana. The officer also saw an envelope marked “Supergold”—which he associated with marijuana—on" }, { "docid": "10270534", "title": "", "text": "passenger compartment of the ear and any containers found therein but excluding the trunk. Id. at 460 & n. 4, 101 S.Ct. at 2864 & n. 4. As Abdul-Saboor reminds us, however, the Court in Belton was doing “no more than determining] the meaning of Chimel's principles in this particular and problematic context.” Id. at 460 n. 3, 101 S.Ct. at 2864 n. 3. So what are the defining characteristics of the context to which the Court was referring? Abdul-Saboor would have us read Belton as a case peculiarly about automobile passenger compartments and the containers found in them. Of course, the Court’s reference to the “particular and problematic context” of that case is susceptible to a wide range of interpretations; it could refer to the nature of the conduct for which the defendants were arrested (possession of drugs), or the potentially menacing situation of a single officer arresting four people, or to the presence of other inculpatory evidence — each of which the Court noted, see id. at 457, 101 S.Ct. at 2862-63 — or to any combination of these or of other variables. To the extent that Belton might be thought to apply only to automobiles, however, we have already rejected that interpretation. See United States v. Brown, 671 F.2d 585, 587 (D.C.Cir.1982) (“Belton covers cases such as this one in which the search is contemporaneous with a lawful custodial arrest and is confined to containers in hand or within reach when the arrest occurs”). In Brown the contents of a zippered pouch were admitted into evidence even though by the time it was searched the pouch had been moved beyond the reach of the defendant, who was being detained on a street comer. Id. at 586. Furthermore, the Court in Belton itself said “there is no need here to consider whether the search and seizure were permissible under the so-called ‘automobile exception,’ ” 453 U.S. at 462-63 n. 6, 101 S.Ct. at 2865 n. 6, which certainly suggests that some other factor or factors determined the outcome. Finally, to the extent that Brown might be thought to" }, { "docid": "10270533", "title": "", "text": "States v. Johnson, 18 F.3d 293, 294 (5th Cir.1994). We review questions of law de novo, as do we review the district court’s “application of legal standards to the facts of the case.” Spencer v. National Labor Relations Board, 712 F.2d 539, 563 (1983). The Government contends, first, that the question whether the drugs and shotguns were within Abdul-Saboor’s area of immediate control is to be answered by reference to the time at which the arrest occurred, not the time at which the search occurred. For this point the Government relies heavily upon New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in which the Supreme Court, applying Chimel, approved the admission of evidence obtained from the search of an automobile conducted while the former occupants, who had been arrested, were being detained by the side of the road. Id. at 456, 101 S.Ct. at 2862. The search authorized in Belton extended precisely to the areas within the arrested persons’ immediate control at the time they were arrested, encompassing the passenger compartment of the ear and any containers found therein but excluding the trunk. Id. at 460 & n. 4, 101 S.Ct. at 2864 & n. 4. As Abdul-Saboor reminds us, however, the Court in Belton was doing “no more than determining] the meaning of Chimel's principles in this particular and problematic context.” Id. at 460 n. 3, 101 S.Ct. at 2864 n. 3. So what are the defining characteristics of the context to which the Court was referring? Abdul-Saboor would have us read Belton as a case peculiarly about automobile passenger compartments and the containers found in them. Of course, the Court’s reference to the “particular and problematic context” of that case is susceptible to a wide range of interpretations; it could refer to the nature of the conduct for which the defendants were arrested (possession of drugs), or the potentially menacing situation of a single officer arresting four people, or to the presence of other inculpatory evidence — each of which the Court noted, see id. at 457, 101 S.Ct. at 2862-63 —" }, { "docid": "1455156", "title": "", "text": "had taken control of the bag. Whether an officer has exclusive control of a seized item does not, however, necessarily determine whether the item remains in “the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U.S. at 763, 89 S.Ct. 2034 (emphasis added). Accordingly, we have rejected the notion that an officer’s exclusive control of an item necessarily removes the item from the arrestee’s area of immediate control. See United States v. Morales, 923 F.2d 621, 626-27 (8th Cir.1991) (rejecting the defendant’s argument that the search of his bags, performed while the defendant was held spread-eagled against a wall three feet away by another officer, was improper because the police had gained “exclusive control” over the bags, explaining that “under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee’s person, an officer may be said to have reduced that article to his ‘exclusive control’ ” (quoting New York v. Belton, 453 U.S. 454, 461-62 n. 5, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981))); United States v. Mefford, 658 F.2d 588, 591-93 (8th Cir. 1981) (upholding the search of the defendant’s paper bag as a search incident to arrest because the bag remained in the area within the defendant’s immediate control even though the arresting officer held the bag during the search); see also United States v. Tejada, 524 F.3d 809, 812 (7th Cir.2008) (noting that the defendant was “unlikely to be able to make a successful lunge for the entertainment center” while he was “[h]andcuffed, lying face down on the floor, and surrounded by the police,” but nonetheless holding that the search of the entertainment center incident to arrest was valid because “the police did not know how strong he was, and he seemed desperate”); United States v. Horne, 4 F.3d 579, 586-87 (8th Cir.1993) (upholding a search of furniture that occurred after the defendant and the only other person in the room had been handcuffed, because the arresting officer “could reasonably have believed that" }, { "docid": "23457976", "title": "", "text": "is governed by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), while the Government asserts that Belton is controlling. We find that neither case is controlling and hold that the district court erred in denying Green’s motion to suppress the firearm. The Supreme Court developed the doctrine of search incident to arrest in Chi-mel. The Supreme Court held that an officer making a lawful custodial arrest may search the person in custody and the “area ‘within his immediate control’ ” into which he might reach in order to obtain a weapon or to destroy evidence. 395 U.S. at 763, 89 S.Ct. 2034. The Supreme Court addressed the applicability of this doctrine to searches of automobiles in Belton. There, the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460, 101 S.Ct. 2860. The Supreme Court in Belton adopted this bright line rule to avoid case-by-case evaluations of whether the defendant’s area of control within the automobile extended to the precise place where the policeman found the weapon or evidence. See 3 Wayne R. LaFave, SEARCH AND SEIZURE: A TREATISE ON THE Fourth Amendment § 7.1 at 136 (Supp. 1982). Although this Court has not addressed this issue, the decisions from other Circuits are instructive. The Sixth and D.C. Circuits do not apply Belton where the police come upon the arrestee outside of his vehicle. See United States v. Strahan, 984 F.2d 155, 159 (6th Cir.1993) (declining to apply Belton where the officer first made contact with the defendant after he had exited his automobile and was thirty feet away from his vehicle when arrested); United States v. Fafowora, 865 F.2d 360, 362-63 (D.C.Cir.1989) (declining to apply Belton to a search of a defendant’s automobile where the defendant had parked and was walking in the opposite direction, approximately one car length away, at the time of the arrest). The Seventh Circuit, however, applies Belton where the defendant" }, { "docid": "10270545", "title": "", "text": "had no reason to fear either the arrestee or the environment in which the arrest unfolded, we agree with our sister circuits that a search of the area where the arrest occurred in circumstances such as this case presents is a search incident to arrest. See, e.g., Davis v. Robbs, 794 F.2d 1129, 1130-31 (6th Cir.1986) (arrestee handcuffed and placed in squad car prior to seizure of rifle in house); United States v. Cotton, 751 F.2d 1146, 1147-48 (10th Cir.1985) (arrestees handcuffed and apparently guarded by officer while state trooper searched vehicle); United States v. Silva, 745 F.2d 840, 847 (4th Cir.1984) (arrestees handcuffed and guarded by agents prior to search of room for weapons); United States v. Palumbo, 735 F.2d 1095, 1096-97 (8th Cir.1984) (arrestee surrounded by several officers and may have been handcuffed prior to search of room); United States v. Roper, 681 F.2d 1354, 1357-59 (11th Cir.1982) (arrestee handcuffed in hallway of mo tel and escorted inside room by agents prior to search of briefcase); Virgin Islands v. Rasool, 657 F.2d 582, 585, 588-89 (3rd Cir.1981) (arrestee handcuffed and removed from automobile prior to search of vehicle); all cited in United States v. Queen, 847 F.2d 346, 352-54 (7th Cir.1988) (arrestee guarded by two armed officers, hands cuffed behind his back, prior to search of closet three feet away). In short, the Government has satisfactorily demonstrated both that the area in question was within Abdul-Saboor’s “immediate control” at the time of his arrest — as required by the Supreme Court in Chimel and Belton — and that the area was “conceivably accessible” to Abdul-Saboor at the time of the search — as required by this court in Lyons. III. Conclusion For the reasons stated, we hold that the warrantless search of Abdul-Saboor’s apartment was a lawful search incident to his arrest. Accordingly, the district court properly denied Abdul-Saboor’s motion to suppress the evidence seized from his apartment during that search. His conviction is therefore Affirmed. Testifying at his suppression hearing, Abdul-Saboor acknowledged that the handgun was on the table but denied that he ever picked it up," }, { "docid": "473306", "title": "", "text": "the four men in the car had been arrested and taken out of the car. Id. at 456, 101 S.Ct. at 2862. After holding that the passenger section of the car was within the arrestee’s reach within the meaning of Chimel, the Court concluded that any container found in a search of that area may also be searched. Id. at 460, 101 S.Ct. at 2864. The Court reasoned, “[s]uch a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.” Id. at 461, 101 S.Ct. at 2864. The Court specifically distinguished Chadwick, stating that Chadwick did not involve “an arguably valid search incident to a lawful custodial arrest” because of the time lapse between the arrest and the search. Belton, 453 U.S. at 461-62, 101 S.Ct. at 2864-65. The Court also rejected the argument that by seizing the jacket, it was in the police officer’s exclusive control: “under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid.” Id. at 461 n. 5, 101 S.Ct. at 2865 n. 5. We conclude that Belton eradicates any differences between searches of the person and searches within the arrestee’s immediate control. Law enforcement officers may, pursuant to a valid arrest, search any container on the person or within his reach. Accord United States v. Anderson, 813 F.2d 1450, 1455-56 (9th Cir.1987); United States v. Herrera, 810 F.2d 989, 990-91 (10th Cir.1987); United States v. Rosenthal, 793 F.2d 1214, 1232 (11th Cir.), modified on other grounds, 801 F.2d 378 (1986), cert. denied, — U.S. -, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987); United States v. Litman, 739 F.2d 137, 138-39 (4th Cir.1984) (en banc). Of course, that search must be contemporaneous with the arrest. Cf. Chadwick, 433 U.S. at 15, 97 S.Ct. at 2485. B. In order to determine whether the search of the briefcase was incident to a lawful" }, { "docid": "23106237", "title": "", "text": "Court in Gant expressed concern that its precedent, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), was being generally applied far beyond the underlying justifications for warrantless vehicle searches incident to arrest of a recent occupant, i.e., officer safety and preservation of evidence. Gant, 129 S.Ct. at 1718-19. It observed that Belton “has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain aecess to the vehicle at the time of the search.” Id. at 1718. Tenth Circuit precedent anteceding Gant was not an exception. The decision in United States v. Humphrey, 208 F.3d 1190 (10th Cir.2000), is exemplary of this circuit’s precedent and is factually indistinguishable from the instant case. In Humphrey, the defendant was stopped for a traffic violation, arrested on the basis of an outstanding warrant, and handcuffed in the patrol car at the time of the search of his vehicle. See id. at 1202. The defendant’s arguments that neither officer safety nor preservation of evidence were in play were to no avail. Id. This court held the search was proper “without regard to the fact that the search occurred after Defendant had been restrained and without regard to the nature of the offense for which he was arrested.” Id. (citation omitted). Other circuit opinions are consistent with Humphrey. United States v. Brothers, 438 F.3d 1068, 1073 (10th Cir. 2006) (upholding search undertaken incident to lawful arrest after the defendant had been restrained, but before the defendant was removed from the scene of the arrest) ; United States v. Cotton, 751 F.2d 1146, 1148-49 (10th Cir.1985); United States v. Murphy, 221 Fed.Appx. 715, 721-22 (10th Cir.2007) (unpublished disposition). The search in this case was wholly consistent with and supported by this court’s precedent prior to Gant. 2. Application of the Good-Faith Exception to the Exclusionary Rule “The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, but contains no provision expressly" }, { "docid": "3672703", "title": "", "text": "v. Tueller, 349 F.3d 1235, 1237 (10th Cir.2003) (quoting United States v. Hargus, 128 F.3d 1358, 1361 (10th Cir.1997)). However, “ ‘the ultimate determination of Fourth Amendment reasonableness is a question of law which we review de novo.’ ” Id. (quoting United States v. Hill, 199 F.3d 1143, 1147 (10th Cir.1999)). Here, we agree with the district court that Officer Kennedy’s search was valid as a search incident to a custodial arrest. In Belton, the Supreme Court established the bright-line rule that, “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460, 101 S.Ct. 2860 (footnotes omitted); see Thornton v. United States, 541 U.S. 615, 620-21, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004); United States v. Humphrey, 208 F.3d 1190, 1202 (10th Cir.2000). This rule applies “without regard to the fact that the search occurred after [the][d]efendant had been restrained.” Id.; see also United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir.1985) (holding Belton applied even though defendant was handcuffed and outside the vehicle at the time search was made). There is no question here that Brothers was taken into custody pursuant to an outstanding warrant, that he was still at the scene of the arrest at the time of the search, and that the search occurred within minutes of his arrest. Cf. United States v. Dennison, 410 F.3d 1203, 1209 (10th Cir.2005) (holding search is not valid under Belton rule where it takes place after defendant was “removed from the scene, and en route to the police station”). We therefore affirm the district court’s ruling on this issue. III. ARMED CAREER CRIMINAL ACT Brothers’ remaining arguments concern his qualification as an armed career crimi nal under 18 U.S.C. § 924(e), and the constitutionality of that statute. Essentially, Brothers argues that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a jury, rather" } ]

[ { "docid": "22202034", "title": "", "text": "to consider the possibilities of two jacquards in operation at the same time in one loom. It could only be material if the plaintiff Was claiming a process for making a corset. It is enough for this case that the invention patented to the plaintiff was clearly described in 1854, in' the printed publication of the Johnson (Geresme) provisional specification. The patent is, therefore, invalid, and hence the* decree of the Circuit Court dismissing the bill must be affirmed. Decree affirmed.' Mr. Justice Clifford dissenting. Inventors, are required, before they receive a patent, to deliver a written description of their inventions, and of the process of making, constructing, and using the same, “ in such full, -clear, concise, and exact terms,” as to enable persons skilled in the art or science to make, construct, and use the same. Power to grant letters-patent is vested in the commissioner; but when the power is exercised and the patent has been duly granted, it is of itself prima facie evidence that the patentee is the original and first inventor of that which is therein described and secured to him as his invention. Proofs are admissible to overcome that presumption; but it is well-settled law that patented inventions cannot be superseded by' the mere introduction of a foreign publication of the kind, though of a prior date, unless the description and drawings contain and exhibit a substantial representation of the patented improvement, “ in such full, clear, concise, and exact terms,” as to enable any person skilled in the art or science to which it appertains, to make, construct, and use the invention to the same practical extent as he would be enabled to do if the information was derived from a prior patent. Applicants for a patent are as much required to describe the manner and process of making, constructing, and using the invention, as they are to file in the Patent Office a written description of the alleged improvement; and both are expressly required to be in such full, clear, concise, and exact terms, as to enable any person skilled in the" } ]

[ { "docid": "15557995", "title": "", "text": "form a knitted foot sock, without reciprocal knitting, from a piece of seamless circular knit tubular fabric rather than from cut and sewn flat fabrics or from circular knit fabrics involving reciprocation. . 35 U.S.C.A. § 102 provides in part: “§ 102. Conditions for patentability: novelty and loss of right to patent “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 for patent, or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or * * * ” 35 U.S.C.A. § 103 provides: “§ 103. Conditions for patentability; non-obvious subject matter “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences 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 art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. July 19, 1952, c. 950, § 1, 66 Stat. 798. . Toledo Scale Co. v. Barnes Scale Co., 18 F.2d 965 (E.D.Mich.1927). . 35 U.S.C.A. § 112 provides in part: “The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. “The" }, { "docid": "23083879", "title": "", "text": "this printed publication is insufficient for one skilled in the art to build what appellee has. If prior patents and publications can be reconstructed by extraneous efforts to fit the exigency of the case, it would, as was said in Badische Anilin & Soda Fabrik v. Kalle & Co., 104 Fed. 802, 44 C. C. A. 201, require an inquiry, not only as to what the publication communicates to the public, but “it will be transferred to an endeavor to ascertain what its author intended to communicate.” We cannot read into this article what is not there,- and which it would be necessary to obtain from the later development of the art in order to meet with appellee’s success. In 1906 Cans applied for the German patent 197,311. This patent covers the invention made in artificial zeolites. It deals with the precipitation system of softening water, but is devoted to the method of manufacturing zeolites. The patent fails to anticipate the patent in suit. It was the same inventive mind at work. When he applied for his German patent, lie did not disclose the subject-matter of the patent in suit, because it was three years later when he disclosed his present inventive thought and applied for the patent in suit. He does not describe the same idea of means in the same stage of development as that which his later invention embodies. A reading of the statement of the German patent fails to disclose a description of a complete and operative art or instrument ready for immediate employment by the public. Westinghouse v. Great Northern, 88 Fed. 258, 31 C. C. A. 525. Gans applied and was granted patents in the United States, Nos. 943,535 and 960,887. They are process patents. They do not disclose an apparatus, and cannot be relied upon as anticipations. The first of these patents was filed February 18, 1907, and reissued October 13, 1911, three months after the application of the patent in suit. The appellants rely upon the reissue patent as a method of regenerating zeolites, but an examination of the original patent discloses" }, { "docid": "3645907", "title": "", "text": "that the date of the Lee provisional specification can have no bearing in this case in determining the date of the Lee invention. I do not think the Lee provisional specification can be used as a printed publica tion as of a date prior to the enrollment of the complete specification. No testimony has been submitted indicating when the provisional specification took dato as a printed publication, and, in the absence of such testimony, the date of the provisional specification as a printed publication is unknown, and cannot he relied upon in this case Sey mour v. McCormick, 19 How. 96, 107; Elizabeth v. Pavement Co., 97 U. S. 126; Coburn v. Schroeder, 11 Fed. Rep. 425. The invention which forms the subject-matter of the Lee patent in suit is a foreign one. This is clear from the Lee English patent in evidence, and other proofs in this case. Under sections 4886, 4920, 4923, Rev. St., the only evidence that can be used in proof of a foreign invention for any purpose is that coming through the channel of a patent or printed publication. It has been repeatedly held that an English patent does not exist as a patent for uses, under the sections of the Revised Statutes above referred to, until the enrollment or sealing of the complete specifications, at which time the English patent becomes open to the public. Smith v. Goodyear, 93 U. S. 486, 498; Bliss v. Merrill, 33 Fed. Rep. 39; Howe v. Morton, 1 Fish. Pat. Cas. 586, 595; Brooks v. Norcross, 2 Fish. Pat. Cas. 661; Manufacturing Co. v. Railroad Co., 26 Fed. Rep. 522; Elizabeth v. Pavement Co., 97 U. S. 126, 131; Schoerken v. Swift, etc., Co., 19 Blatchf. 209, 7 Fed. Rep. 469; Coburn v. Schroeder, 11 Fed. Rep. 425. A decree may be drawn for complainant in accordance with this opinion." }, { "docid": "23171045", "title": "", "text": "reference disclosed in a German publication “Akustishe Zeitsehrift” (dx K-42, 1229a), and because it lacks invention. The trial judge made findings by which he distinguished between the disclosures of Gotz and claim 2 of the patent now before us. He found that there was no anticipation. We agree with his conclusions and find that they are not clearly erroneous. We might say further that the Gotz reference discloses that the author was transmitting sound waves through his workpiece at an angle and measuring the intensity of the received sound, rather than measuring the time interval between the sending of a wave train and the reception of a wave train reflected from a flaw or discontinuity. There is a basic difference. “A foreign patent is to be measured as anticipatory, not by what might have been made out of it, but by what is clearly and definitely expressed in it. An American patent is not anticipated by a prior foreign patent, unless the latter exhibits the invention in such full, clear, and exact terms as to enable any person skilled in the art to practice it without the necessity of making experiments.” Carson v. American Smelting & Refining Co., 9 Cir., 4 F.2d 463, 465, certiorari denied, 269 U.S. 555, 46 S.Ct. 18, 70 L.Ed. 409. See also: Borg-Warner Corp. v. Mall Tool Co., 7 Cir., 220 F.2d 803. We find claim 2 of patent 4 is not anticipated by Gotz. The patent office allowed the patent after first rejecting it because of lack of invention over patent No. 1. The method described by the claim in suit is novel and useful and we think is properly classed as invention. The trial judge so found and we cannot say that such finding is clearly erroneous. Neither can we find sufficient evidence of lack of invention to overcome the presumption of validity. We find the claim in question to be valid. We have been considering, under the first six questions of defendants’ brief, the validity of the claims in suit of patents numbered 1, 2, 3 and 4. Questions eight and nine" }, { "docid": "8875668", "title": "", "text": "Court finds that no patent which defendants name anticipate the disclosures of the patent in the suit and it discloses invention over each and all of the patents cited by the defendants.” This finding specifically incorporating plaintiff’s argument results in an argumentative finding which relegates it to the position where it has little, if any, value in support of the court’s conclusion of validity. Plaintiff cites a number of cases in support of its urgent contention that all the elements of a combination claim or their mechanical equivalents must be found in a single prior art patent before there can be anticipation. Bates v. Coe, 98 U.S. 31, 48, 25 L.Ed. 68; Chicago Lock Co. v. Tratsch, 7 Cir., 72 F.2d 482, 487; Williams Iron Works Co. v. Hughes Tool Co., 10 Cir., 109 F.2d 500, 506. No good purpose could be served in discussing such cases. Certainly it cannot be doubted that the entire prior art may be looked to, and the mere fact that some of the elements of a combination claim are found in one prior art patent and other elements in another does not render such art impotent as a guide for ascertaining novelty. There still remains the all-important question as to whether the combination of such elements amounts to a patentable invention or whether it might reasonably be expected of a mechanic or a person skilled in the art. Florsheim v. Schilling, 137 U.S. 64, 77, 11 S. Ct. 20, 34 L.Ed. 574; Daylight Glass Mfg. Co. v. American Prismatic Co., 3 Cir., 142 F. 454, 456; Jacobs Mfg. Co. v. T. R. Almond Mfg. Co., C.C., 169 F. 134, 139. Patents No. 1,857,610 and No. 1,919,751 These two patents may appropriately be considered together because of defendants’ contention that the invention asserted for the latter is covered by the former and constitutes “double patenting.” If it were not for this situation, little, if any, attention need be given to the former because, while the court held this patent valid, it also held that it was not infringed, and further, it will expire May 10,1949." }, { "docid": "22775237", "title": "", "text": "as it was proper to do, to the claims in suit and to the invention exhibited in them, and in considering the relation of the patent in suit with foreign patents they distinguished between what the Circuit Court denominates the “broad and basic invention” covered by those claims and the “minor part” shown in the foreign patents. Petitioner attempts to make the recording and reproduction of sounds essential parts of one invention, of which the claims are but parts. The purpose is to identify the invention of the patent with every one of the foreign patents and bring the case under what is conceived to be the doctrine of Siemens v. Sellers, 123 U. S. 276. That case, it is contended, precludes a distinction between the claims of patent into basic and not basic, principal or subordinate, and establishes that all the claims of a home patent must be so limited as to expire with the expiration of a foreign patent, or if there be more than one prior foreign patent, with the expiration of the one having the shortest term.' Upon the expiration of a patent, it is argued, all of its claims- expire, since, as this court said in Siemens v. Sellers, as it is contended, “a patent cannot be considered as running partly to one date and partly to another, for this would be productive of endless confusion. In other words, a patent cannot expire, in parcels, it cannot have a plurality of terms.” Therefore it is contended that it is the patent, and not the separate claims thereof, which are by the statute limited to expire with the foreign patent. Siemens v. Sellers is cited for thi§ doctrine, as we have said, and also the following cases: Western Electric Co. v. Citizens’ Telegraph, Co., 106 Fed. Rep. 215; Sawyer v. Spindle Co., 133 Fed. Rep. 238, affirmed in 143 Fed. Sep. 976; Thomson & Houston Co. v. McLean, 153 Fed. Rep. 883. Siemens v. Sellers is especially relied upon, and whatever there is in the other cases that support the contention of petitioner is based on" }, { "docid": "247744", "title": "", "text": "an established principle of patent law. Even so, we know of no reason why the prior art may not be properly considered on the question of invention. We need not decide whether the patent in suit is anticipated by any one of such prior art patents. It is sufficient, we think, that the prior art disclosures are such that a person skilled in .the art might readily design the improvement which [the patentee]1 claims to have made. The improvement thus made would not, in our judgment,, amount to invention, and the claims in suit are therefore invalid.” Dixie-Vortex Co. v.. Paper Container Mfg. Co., 7 Cir., 130 F.2d 569, 572. In Busell Trimmer Co. .v., Stevens, 137 U.S. 423, 11 S.Ct. 150, 34 L.Ed. 719, the court had before it for adjudication the validity of a patent covering a rotary cutter for trimming the edges of shoe soles. The claim was made that the features of the patent there in suit were: patentable novelties — especially because of the combination of them into one device. The court rejected this contention in view of the previous state of the art. In its holding, the court said that the evidence, taken as a whole, shows that all of the claimed elements were to be found in various prior patents, some in one patent and some in another, but all performing like functions in well known inventions having the same object as the patent in suit. From the above, it would appear that the court was of the opinion that the patent in suit could he considered anticipated by the prior art, and that the novelty of the combination in one device of the features of the patent could be negatived by a reference to one prior art for one feature and to another prior art for another feature. The foregoing would seem to be in contradiction of the law relied upon by appellee to the effect that appellants cannot combine the different parts of three prior patents — particularly where one is a foreign patent — for the purpose of making a" }, { "docid": "8875669", "title": "", "text": "found in one prior art patent and other elements in another does not render such art impotent as a guide for ascertaining novelty. There still remains the all-important question as to whether the combination of such elements amounts to a patentable invention or whether it might reasonably be expected of a mechanic or a person skilled in the art. Florsheim v. Schilling, 137 U.S. 64, 77, 11 S. Ct. 20, 34 L.Ed. 574; Daylight Glass Mfg. Co. v. American Prismatic Co., 3 Cir., 142 F. 454, 456; Jacobs Mfg. Co. v. T. R. Almond Mfg. Co., C.C., 169 F. 134, 139. Patents No. 1,857,610 and No. 1,919,751 These two patents may appropriately be considered together because of defendants’ contention that the invention asserted for the latter is covered by the former and constitutes “double patenting.” If it were not for this situation, little, if any, attention need be given to the former because, while the court held this patent valid, it also held that it was not infringed, and further, it will expire May 10,1949. In fact, plaintiff contends that the question as to its validity has become moot. This is perhaps true, but in view of defendants’ contention that it covered the invention asserted for No. 1,919,751, we think a consideration of both patents is desirable. Plaintiff relies upon claims 1, 2 and 5, *of No. 1,857,610, and claims 1 and 2 of No. 1,919,751. Claim 1 of the latter is illustrative for the purpose of the question to be determined. In the former, we have difficulty in discerning what is relied upon as constituting invention. We need not cite any prior art for the proposition that a form tie having means both on the inner and outer side of the form for holding it in place was old. In fact, the patentee states in his specifications, “My improved form tie may be used with any suitable form, which may consist of longitudinal boards re-enforced by horizontal beams and vertical beams, all of which are used in the conventional manner.” The sole novelty which can possibly be claimed for" }, { "docid": "22782565", "title": "", "text": "of the electric telegraph; and to Bell of the telephone. The record in this^case would indicate that the. same honorable appellation might 'safely be bestowed' upon the original air-brake of Westinghouse, and perhaps also upon his automatic brake. In view of the fact that the invention in this case.was never put into successful operation, and Was to a limited-extent anticipated by the Boy-den patent of 1883, it is perhaps an unwarrantable extension of the term to speak of it as a ‘pioneer,.’ although the principle involved., subsequently and through improvements upon this invention became one of great value to the public.” While it may be admitted that the Sutton patent-was a distinct step in the art, and is entitled to protection as a yaluable invention, nevertheless it cannot be said to be a pioneer patent in any just sense. In the English Lake patent of 1881. of which more will be said hereafter, there ié doubtless a sugr gestión of the use of brushes for the purpose of separating the fur from the long hair to be removed. And so in the Covert patent of 1884, which was the subject of consideration by Judge Wheeler in the case of Cimiotti Unhairing Co. v. Mischke, 98 Fed. Rep. 297. In that case it was said that Covert’s patent had been mechanically but not commercially successful, and that in lieu of a rotating separating brush, shown in Sutton’s patent, Covert used a revolving cloth-covered cylinder, and it was held that this was. not equivalent to the separating brush, and Sutton’s invention was an advance upon anything theretofore shown. Of the Covert patent Judge Cox, in the course of an able opinion sustaining the Sutton patent, Cimiotti Unhairing Co. v. American Machine Co., 115 Fed. Rep. 498, 502, said: ' “Covert came nearer than any one else to a successful machine. He had but one moré step to take and here he became bewildered and went astray. He missed the apparently simple arrangement of the rotary brush which alone was necessary. It will not do to say that the prior art showed such" }, { "docid": "3436243", "title": "", "text": "71 S.Ct. 127, 95 L.Ed. 162, and other cases hereinafter cited. When these claims are thus construed the complete absence of patentable invention is evident. The alleged invention comprises nothing more than \"an assemblage of old elements, or their structural equivalents, in a combination in which they perform no new or different function. It is well established that such an assemblage is not a patentable invention. Textile Machine Works v. Louis Hirsch Textile Co., 302 U.S. 490, 58 S.Ct. 291, 82 L.Ed. 382; Altoona Public Theatres v. American Tri-Ergon Corp., 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1005; Hutchinson Mfg. Co. v. Mayrath, 10 Cir., 192 F.2d 110, and other cases hereinafter cited. The positively actuated machine described in the specification and defined in the claims of the patent in suit was an improvement over the prior art, but it was not a patentable improvement. It would have been obvious to the person skilled in the art to which the patent in suit pertains that the combination cutter and stripper disclosed by both Lary and Powell could be easily modified and thus adapted to cut a slice of butter into segments or pats suitable for table use. The necessary modification and adaptation of the structural elements required nothing more than the expected skill of the art. This conclusion is supported by the evidence before the Court. It clearly appears that in the normal development of the dairy industry those who followed Lary and Powell utilized the same elements, or their mechanical equivalents, in combinations in which they perform the same functions as theretofore in substantially the same manner. Rottenberg Patent. (’872) The plaintiff is the owner of this patent, which issued May 21, 1940 on an application filed April 2, 1937. The patent covers a machine therein identified as a “Cutting, Shaping, Embossing, and Wrapping Machine for Butter or Similar Plastic Material.” The structural elements of this machine are hereinafter described. The alleged invention is defined in claim 4, the only claim here in issue, as follows: “In a butter cutting machine of the character described, a butter slicing" }, { "docid": "15156002", "title": "", "text": "with the plaintiff. We find nothing in the English patent to Davies anticipatory of this invention, or suggestive of it. The defendants’ own expert admits that the drawing of the English device is obscure. It certainly is so. Nor are we required, by reason of anything disclosed by that patent, or the American patents in evidence, or by the Milwaukee device, to read into the claims of the Stonemetz patent such precise limitations as would relieve the defendants from the charge of infringement. We think infringement is here shown of all the claims, upon any fair construction of them. And we need scarcely add that even if Brown’s patent, No. 331,762, shows a patentable improvement, yet it affords the defendants no justification for their use of the original invention. Blake v. Robertson, 94 U. S. 728, 733. The plaintiff, therefore, is entitled to a decree for an injunction and an account. But we think a case for relief under section 4918, Rev. St., has not been made out. In the statutory sense, patents interfere only when they claim the same invention, in whole or in part. Manufacturing Co. v. Craig, 49 Fed. Rep. 370. And in a proceeding under section. 4918 the court cannot go beyond the claims, and consider generally the two patents as a whole. Id. It has been held that an interference does not exist, within the meaning of the statute, between a patent having a dominant broad claim and a junior patent having a subordinate specific claim. Morris v. Manufacturing Co., 20 Fed. Rep. 121; Pentlarge v. Bushing Co., Id. 314. Here the claim of Brown’s patent, Mo. 331,762 is not coextensive with any of the claims of the Stonemetz patent, hut is a very specific and subservient claim. Whether lie shows patentable novelty to sustain his claim is a question not involved in this interference issue, (Rob. Pat. § 724,) and upon which we are not now’ called on to express any opinion. If there is no interference between the Stonemetz patent and Mo. 331,762, certainly none exists between it and Mo. 322,344, and, indeed," }, { "docid": "5348010", "title": "", "text": "produce a ‘new and useful result, amounts to invention. Expanded Metal Co. v. Bradford, 214 U. S. 366, 381, 29 Sup. Ct. 652, 53 L. Ed. 1034. Unless Kirby is to the contrary, the prior art indisputably contains no anticipating device — indeed, no device which anticipates even Schirmer’s feeding mechanism. In our opinion Kirby does not anticipate the invention of the claims in suit. The Kirby patents are three, viz. Nos. 469,665 and 469,666, both issued February 23, 1892, and No. 545,342, issued July 23, 1895. Each of the three discloses a pin-feed mechanism. In the third'patent the sheets of paper are not shown to be previously perforated; the sheets being pierced by the pins as the roller rotates in the feeding process. The first and second patents describe the strips as perforated near their edges or along their sides, and the teeth as engaging with the perforations. The drawings of both the first and second patents show what would seem to be longitudinal perforations, as distinguished from the round openings of Schirmer. Such longitudinal openings would seem not to serve the full purpose of Schirmer’s openings. Defendant has not persuasively shown a draftsman’s practice of indicating round holes by lines or slits. Prior patents are part of the prior art only by what they disclose on their face. Munising Paper Co., Ltd., v. American Sulphite Pulp Co. (C. C. A. 6) 228 Fed. 700, 703, 143 C. C. A. 222, and cases there cited. There is, however, express testimony that Kirby’s perforations were round, and that machines were constructed under the patents (or one of them) with round strip perforations and with a feeding mechanism substantially that of Schirmer. , This testimony is sharply disputed, and defendant’s testimony is not corroborated by the production of any machine so constructed or operated. In our opinion, defendants have not shown the alleged prior use hy evidence of the high degree required therefor. But it is enough to say that neither of the Kirby patents discloses the combination of the patent in suit, viz. Schirmer’s feed and tearing-off mechanism combined. In" }, { "docid": "7194415", "title": "", "text": "spindles, etc., and also a declared ■purpose to use these perforated channel plates as a means to diminish the number of parts and “to produce greater rigidity in the structures.” We thus come to' the question whether there is any disclosure amounting to patentable invention. There are a number of reasons why we think there is not. In the first place, the manual copyrighted by the Mec-cano limited in 1910 shows perforated rectangular plates with integral, though solid, flanges, one of them having also an attached perforated flange (called in the manual an angle bar or girder); and these disclosures were regarded by the learned trial judge as anticipating the patent “so far as the language of the claims is applicable to¡ the rectangular plate” (D. C.) 234 Fed. 924, 925. The manual was a prior “printed publication” within the meaning of section 4886, Rev. Stat. U. S. (Comp. St. 1916, § 9430); and its effect upon the patent in suit is in principle the same as if the manual had been put out by a stranger. James v. Campbell, 104 U. S. 356, 382, 26 L. Ed. 786; Schieble Toy Novelty Co. v. Clark, 217 Fed. 760, 766, 133 C. C. A. 490 (C. C. A. 6). Further, as pointed out in the opinion below, the rectangular plate in issue finds close analogy in the perforated rectangular blocks shown in the patent to Ouackenbush, September 25, 1877, No1. 195, 689. That patent, it is true, was for an improvement in wooden toy-building blocks associated with wheels, spindles, and the like; but the idea of a change from wood to metal in adapting old elements to other structures in order as here to make them more rigid is well within the scope of mechanical skill (Wise Soda Fountain Co. v. Bishop-Babcock-Becker, 240 Fed. 733, 736, 153 C. C. A. 531 and citations [C. C. A. 6]); besides, the use of perforated metal parts in the construction of toys was, at the date of the patent in suit, well known to the patentee, Hornby, through his earlier United States patent, January" }, { "docid": "13229441", "title": "", "text": "out of which the judgment may be satisfied, but that is not ground for holding that it is not in law liable to the appellee. The decree is affirmed.- ROSS, Circuit Judge (dissenting). Among the defenses set up by the answer 'of the defendant to the suit were lack of novelty and invention, anticipation, no infringement, and a want of sufficient description of the alleged invention. By the decree appealed from it was adjudged that claim 2 of the patent was valid, and that it had been infringed by the defendant. The invention claimed was for an improvement in the art of bleaching nuts, and was in no sense one of a pioneer character. _ I agree that in considering the sufficiency of the description contained in the specification, as well as the claims, a liberal commonsense construction should be given so as to sustain the patent, if this can be done consistently with the language employed therein. Davis v. Palmer, 7 Fed. Cas. 155; Davoll v. Brown, 7 Fed. Cas. 199; Turrill v. Railroad Co., 1 Wall. 491, 17 L. Ed 668; Rubber Co. v. Goodyear, 9 Wall. 788, 19 L. Ed. 566; Klein v. Russell, 19 Wall. 443, 22 L. Ed. 116; Cornplanter Patent, 23 Wall. 181, 23 L. Ed. 161; Merrill v. Yeomans, 94 U. S. 568, 24 L. Ed. 235. At the same time the same common-sense view must be taken of the statute by virtue of which patents are issued, which involves, of course, a consideration of the purpose of the required specification. The pertinent statutory provisions are as follows: Revised Statutes: “See. 4886. Any person wño lias invented or discovered any new and- useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned," }, { "docid": "2270309", "title": "", "text": "the cases referred to by counsel is accepted as the test by which the anticipating patents in this case have been judged. That rule requires that anticipating patents shall exhibit by their descriptions or drawings such a substantial representation of the patented invention, and shall exhibit it in such full, clear, and exact forms, as will enable any person, skilled in the art to which it belongs, to practice the invention without the necessity of making experiments. This rule, however, does not exclude the right to make obvious mechanical changes or such perfecting and refining in the anticipating structure as is usual and permissible in adapting the invention to commercial and practical use. In Sparks-Withington Co. v. Jay (6 C. C. A.) 270 Fed. 449 (decided below by me), the Court of Appeals of this circuit had under consideration the Jay invention of a vacuum feed system. In its broader claims it was held anticipated by the Tice device, disclosed in an engineering publication which concededly was not commercially practicable; but Judge Knappen, delivering the opinion, says: “We think the Tice device, as disclosed by him, cannot he pronounced inoperative in a patentable sense, although under many conditions likely to be met it would fail to function, and thus could not be successful commercially. But, testing the disclosure as we think we should by the rules applicable to a patent, the device, as described, did not lack invention merely because the inventor did not successfully bring his art to the highest degree of perfection, nor because, without changes in or additions thereto, it could not be successful commercially.” In Republic Iron & Steel Co. v. Youngstown Sheet & Tube Co. (6 C. C. A.) 272 Fed. 386 (decided below by me), the same principles were announced, and, although the skelp-charging furnace device of the prior patent had never been installed or used commercially, it was held to anticipate a later patent for a skelp-charging device which had been, not only installed, but had become successful commercially; and this was held, even though the later device was found not to infringe" }, { "docid": "4278350", "title": "", "text": "in this connection, is that the sending of the circulars into this country, for the purpose of introducing the invention, entitles Meller & Hoffman ■to protection back to the date of them arrival, which it appears was .sometime prior to September 9,1874. To destroy the validity of this patent, it must be shown that the invention was not patented or described in any printed publication, in this or any foreign country, before the patentee’s invention or discovery thereof. Rev. St. § 4886. The Meller & Hoffman device was patented in Prance on November 30, 1876, but defendant claims to have perfected his device in 1875, and to have proceeded with due diligence, considering his poverty and ignorance, to the obtaining of a patent in 1878. Plaintiff, however, says that its invention was first made in Germany, in 1872, and in September, 1874, circulars were sent to this country to persons engaged in the brewing trade, and with the view of introducing the Meller & Hoffman process into use here. It is attempted to carry the date of the plaintiff’s invention back to the time when these circulars were received, which was undoubtedly anterior to the time when Pfaudler had perfected his mechanism. But it seems to me there are two objections to these circulars: First. They do not describe the Meller & Hoffman device with that clearness and certainty which the law requires for an anticipation. Thus, in Seymour v. Osborne, 11 Wall. 516, 555, it is said that— “Patented inventions cannot be superseded by the mere introduction of a foreign publication of the kind, though of prior date, unless the description and drawings contain and exhibit a substantial representation of the patented improvement, in such full, clear, and exact terms as to enable any person skilled in the art or science to which it appertains, to make, construct, and practice the invention to the same practical extent as they would be enabled to do if the information was derived from a prior patent. Mere vague and general representations will not support such a defense, as the knowledge supposed to" }, { "docid": "1204948", "title": "", "text": "than the circular sides of Taylor and Franz. Another important objective of the Waleh patent is provision of maximum useful space for leading wires out of the duct. The Waleh patent teaches many more discreet openings per unit length than Taylor or Franz, because slits are narrower than they are high, while the openings of Taylor and Franz are not. Furthermore, the design of Waleh allows the wires to be placed at a substantially greater number of positions vertically through the side wall. Thus, both vertically and horizontally the Waleh patent provides the advantages of maximum utilization of space not present in the prior art relied on by defendant. Taking all these facts into consideration, it is clear that neither all the elements nor all the functions of the Waleh invention are present in any combination of prior art, much less in any one example of prior art. This is said keeping in mind the prior art cited by the Patent Office, as well as that relied on by defendant. The Waleh patent definitely possesses the requisite novelty. All that remains for a determination of validity is finding whether the Waleh invention would have been obvious to one skilled in the art. As to the Franz device, there is little question that it would not have made the Waleh invention obvious, even in combination with other prior art known at the time. In the first place, Franz was a fanning strip rather than a wiring duct. Second, there is no evidence that the patent was anything more than “paper” prior art that had never been used. Although all prior patents are proper references, American Air Filter Co. v. Continental Air Filters, Inc, 347 F.2d 931 (6th Cir. 1965), the mere “paper” character of Franz lessens the weight, if any, which it should be accorded. Republic Iron & Steel Co. v. Youngstown Sheet & Tube Co, 272 F. 386 (6th Cir. 1921); Campbell v. Mueller, 159 F.2d 803, 809 (6th Cir. 1947). Finally, Franz simply does not suggest two of the most important teachings in Waleh: maximum usable area and ability" }, { "docid": "4262748", "title": "", "text": "named therein. These grounds of demurrer are both well taken. A suit may be brought upon several patents, but it can be maintained only when the inventions covered by those patents are embodied in the infringing process, machine, manufacture, or composition of matter. Seymour v. Osborne, 11 Wall. 516; Bates v. Coe, 98 U. S. 48; and a number of cases decided by the circuit courts, and reported in the Federal Reporter, to which reference may be found in note 1 to section 417, Walk. Pat. (3d Ed.). The averment in the bill is in the alternative, which is bad. It does not appear upon the face of the bill that the three patents sued upon are embodied in the respondents’ alleged infringing machine. As to the second ground of demurrer, there is an averment that the respondents named infringe, but no averment that they are joint infringers with the other defendants. That objection, therefore, is well taken, and the demurrer is sustained upon both grounds. The second demurrer is, in substance, the same as the first ground of the first demurrer, and therefore need not be further referred to. The third demurrer is upon the ground that it nowhere appears in the bill that the letters patent sued upon were not patented or described in some printed publication in this or some foreign country prior to the alleged invention thereof. That objection is well founded, and is supported by Overman Wheel Co. v. Elliott Hickory Cycle Co., 49 Fed. 859; also, by Hanlon v. Primrose, 56 Fed. 600; Goebel v. Supply Co., 55 Fed. 825; and Hutton v. Seat Co., 60 Fed. 747. See, also, section 4886 of the Revised Statutes of the United States. The demurrers will be sustained. Telegraph Co. v. Chillicothe, 7 Fed. 351; Nellis v. Manufacturing Co., 13 Fed. 451; Lilliendahl v. Detwiller, 18 Fed. 177; Consolidated Electric Light Co. v. Brush-Swan Electric Light Co., 20 Fed. 502; Griffith v. Segar, 29 Fed. 707." }, { "docid": "17452535", "title": "", "text": "upon the fruit; fifth, in providing said device with a coring-knife, which is so arranged that its cutting edge comes in contact with the parts of the fruit about the core with a draw-cut; sixth, in providing said device with a double-spiral fork for securely holding the fruit.” The twelve claims in the patent are for the machine as a combination, and for separate and distinct portions of it as separate and distinct inventions. The bill charges infringement of the Lenth claim only which reads as follows: “The combination of the arched coring-knife, I, and slicing-knife, H, substantially as shown and described.” It is insisted by the defendants’ counsel that Stewart alone invented the arched coring and slicing-knife; and that, therefore, a joint patent for this distinct- invention was unauthorized. Stewart testified that he conceived the idea of combining the slicing and arched coring-knife as it is described in the patent; and that he gave instructions to Campbell how to make the knife. He further testified that certain other parts of the combination, which are covered by separate claims in the patent, were invented by him; while other parts -were invented by Campbell. Campbell was also examined as a witness, but his testimony on these points did not differ materially from Stewart’s. Stewart and Campbell were entitled to a joint patent for what they jointly invented. It may be that their minds co-operated in combining the different parts which resulted in the production of the complete machine, but a joint patent can' be sustained only for a joint invention; and the evidence shows that Campbell did not contribute to the invention covered by the tenth claim. Stewart was the sole inventor-of the slicing and coring-knife, and the patent for that, as a separate and distinct part of the machine, should have been issued to him alone. Worden v. Fisher, 11 Fed. Rep. 505; Bunging App. Co. v. Woerle, 29 Fed. Rep. 450. The bill is dismissed for want of equity." }, { "docid": "6980050", "title": "", "text": "that the flowing of the water in an upward or downward direction in the apparatus and through the zeolites were well-known equivalents. The first question is whether the patentee was the first to successfully produce absolutely soft water in the use of zeolites by the adaptation of his patented apparatus. In answering it must first be determined what effect shall be 'given to the prior German patent, No. 197,111, dated April 6, 1908 (application October 28, 1906), and the later American patents, Nos. 943,535-960,887, and reissue, No. 13,686, to the inventor of the patent in suit, and assigned by him to J. D. Riedel Aktiengesellshaft, and the prior foreign publications — the Centralblatt article of September 7, 1907, containing the lecture or writing of Dr. Feldhoff, and the Zeitschrift article of May 28, 1909, by Dr. Siedler, together with his lecture, delivered in London, copies of which were circulated there and in this country more than two j^ears before the application in suit. Inasmuch as controlling importance is attached by defendants to what is described and illustrated in the prior foreign publications, the rule as to them may be stated here. Foreign publications, to constitute them anticipations of a later invention, must disclose a complete and operative structure, and, indeed, the description given must be sufficiently clear and definite and understandable to enable persons skilled in the art or science to which the invention or device belongs to practice and construct it. Seymour v. Osborne, 11 Wall. 516, 20 L. Ed. 33; Badische Anilin & Soda Fabrik v. Kalle (C. C.) 94 Fed. 163. Drawings or exhibits, if any, shown in connection with prior publications, must be considered with the published description of the device, which the law requires must be in “full, clear, and exact terms,” so that those desiring to manufacture the article or reduce it to practice may do so without either independent experiments or the exercise by them of the inventive faculty. If the prior description and drawings relied on do not conform to that rule, a subsequently issued patent in this country for the same" } ]

[ { "docid": "13078034", "title": "", "text": "369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962)). Because summary judgment is only appropriate where there is no issue of material fact and judgment is appropriate as a matter of law, our review of a grant of summary judgment is plenary. Jefferson Bank v. Progressive Casualty Ins. Co., 965 F.2d 1274, 1276 (3d Cir.1992). III. Section 727(a) of the Bankruptcy Code provides that a debtor shall be granted a discharge unless: (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate ... has transferred, removed, destroyed, mutilated, or concealed ... (A) property of the debtor, within one year before the date of the filing of the petition. 11 U.S.C. § 727(a) (1988). Congress described § 727’s discharge provision as “the heart of the fresh start provisions of the bankruptcy law.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 384 (1977). The section is to be construed liberally in favor of the debtor. See, e.g., In re Burgess, 955 F.2d 134, 136 (1st Cir.1992); In re Adeeb, 787 F.2d 1339, 1342 (9th Cir.1986); In re Devers, 759 F.2d 751 (9th Cir.1985). Completely denying a debtor his discharge, as opposed to avoiding a transfer or declining to discharge an individual debt pursuant to § 523, is an extreme step and should not be taken lightly. Section 727 provides an exception to the general rule that a court must grant a debtor his discharge; that exception consists of two components: an act (i.e. a transfer or a concealment of property) and an improper intent (i.e., a subjective intent to hinder, delay, or defraud a creditor). The party seeking to bar discharge must prove that both of these components were present during the one year period before bankruptcy; anything occurring before that one year period is forgiven. In this case, it is undisputed that Rosen’s transfer of the residence occurred more than a year before discharge. Thus, the summary judgment denying a discharge in this case can only be sustained if the uncontradicted evidence demonstrates that Rosen concealed property from his creditors, with" } ]

[ { "docid": "23022624", "title": "", "text": "That per se approach is inconsistent with consideration of all the relevant factors in determining intent. Because the bankruptcy court applied an incorrect interpretation of materiality and that interpretation informed its view of intent, we reverse the grant of summary judgment in favor of Debtors on the § 727(a)(4) claim. (2) Fogal’s Motion for Summary Judgment Fogal argues that the bankruptcy court erred in denying its motion for summary judgment. Summary judgment is ordinarily not appropriate in a § 727 action where there is an issue of intent. See, e.g., In re Stuerke, 61 B.R. 623 (9th Cir. BAP 1986) (fraud claims so attended by factual issues that summary judgment seldom possible). Fogal is not entitled to summary judgment under § 727 because the record in this case, unlike in Devers, includes credible evidence beyond mere self-serving statements of intent which creates a genuine issue of material fact as to whether Debtors acted with the requisite intent under § 727. For example, the record includes evidence that Debtors transferred assets on the advice of their accountant for tax considerations. 2. Section 727(a)(2)(A) Section 727(a)(2)(A) provides that a court shall grant a debtor a discharge unless “the debtor, with intent to hinder, delay or defraud a creditor or an officer of the estate charged with custody of property ... has transferred, removed, destroyed, mutilated, or concealed ... property of the debtor, within one year before the date of the filing of the petition.” “Two elements comprise an objection to discharge under § 727(a)(2)(A): 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor...” In re Beauchamp, 236 B.R. 727, 732 (9th Cir. BAP 1999) (quoting In re Lawson, 122 F.3d 1237, 1240 (9th Cir.1997)). The transfer must occur within one year prepetition. Lawson, 122 F.3d at 1240. Lack of injury to creditors is irrelevant under § 727(a)(2). In re Bernard, 96 F.3d 1279, 1281-82 (9th Cir.1996). As with § 727(a)(4)(A), intent may be inferred from the actions of the debtor. Devers, 759 F.2d at 753-54." }, { "docid": "18800576", "title": "", "text": "Section 727(a)(2) states in relevant part: (a) The court shall grant the debtor a discharge, unless (2) 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 (B) property of the estate, after the date of the filing of the petition; Denial of a discharge pursuant to § 727(a)(2) requires the objecting party show: 1. That a transfer occurred; 2. That the property transferred was property of the debtor; 3. That the transfer was within one year of petition; and, 4. That at the time of the transfer, the debtor possessed the requisite intent to hinder, delay or defraud a creditor. In re More, 138 B.R. 102 (Bankr.M.D.Fla.1992). The party objecting to discharge has the burden of establishing each of these elements. Id.; Federal Rule of Bankruptcy Procedure 4005. It is not disputed that the real estate and the ring were transferred to Milam or that the items were property of defendants. Defendants also acknowledge that the transfer of the ring took place within one year of their filing chapter 7. The timing of the real estate transfer and defendants’ intent in transferring the ring are, however, in dispute. The deed conveying the real estate to Milam was executed on April 2, 1991. Under Florida law, delivery of a deed transfers title to' real property. Jeffords v. Jeffords, 148 So.2d 43 (1st D.C.A.Fla.1962); Dolores Land Corp. v. Hillsborough County, 68 So.2d 393 (Fla.1953). Defendants filed their chapter 7 petition on July 1, 1992, fifteen months after the transfer to Milam. Consequently, plaintiffs cannot sustain their burden pursuant to § 727(a)(2) regarding the transfer of the real estate. The intent to hinder, delay or defraud a creditor must be actual not constructive intent. Id. Direct evidence of intent is rarely available thus intent may be discovered from the totality of" }, { "docid": "23022625", "title": "", "text": "accountant for tax considerations. 2. Section 727(a)(2)(A) Section 727(a)(2)(A) provides that a court shall grant a debtor a discharge unless “the debtor, with intent to hinder, delay or defraud a creditor or an officer of the estate charged with custody of property ... has transferred, removed, destroyed, mutilated, or concealed ... property of the debtor, within one year before the date of the filing of the petition.” “Two elements comprise an objection to discharge under § 727(a)(2)(A): 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor...” In re Beauchamp, 236 B.R. 727, 732 (9th Cir. BAP 1999) (quoting In re Lawson, 122 F.3d 1237, 1240 (9th Cir.1997)). The transfer must occur within one year prepetition. Lawson, 122 F.3d at 1240. Lack of injury to creditors is irrelevant under § 727(a)(2). In re Bernard, 96 F.3d 1279, 1281-82 (9th Cir.1996). As with § 727(a)(4)(A), intent may be inferred from the actions of the debtor. Devers, 759 F.2d at 753-54. The necessary intent under § 727(a)(2) “may be established by circumstantial evidence, or by inferences drawn from a course of conduct.” In re Adeeb, 787 F.2d 1339, 1343 (9th Cir.1986) (quoting Devers, 759 F.2d at 753-54). As mentioned above, Debtors admit that they did not disclose certain transfers and that they omitted assets in their petition. The issues presented concern whether the bankruptcy court applied the correct standard of law and whether Debtors acted with the requisite intent. The bankruptcy court erred in granting Debtors’ motion for summary judgment. Although § 727(a)(2) does not contain a materiality element, the bankruptcy court applied considerations of materiality to Fogal’s § 727(a)(2)(A) claim. In addition, a genuine issue exists as to whether Debtors acted with the requisite intent. As with its consideration of intent under § 727(a)(4)(A), the bankruptcy court improperly limited its consideration of evidence supporting Fogal’s claim that Debtors acted with the requisite intent based on its conclusion that only false statements and omissions that cause direct financial prejudice to creditors are material. Debtors appear to" }, { "docid": "14255280", "title": "", "text": "(2) the debtor, with intent to hinder, delay, or defraud a creditor ... has ... concealed— (A) property of the debtor, within one year before the date of the filing of the petition. 11 U.S.C. § 727(a)(2)(A). Thus, two elements comprise an objection to discharge under § 727(a)(2)(A): 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act disposing of the property. Both elements must take place within the one-year pre-filing period; acts and intentions occurring prior to this period will be forgiven. See Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). Granting of security for a debt is a transfer under the Bankruptcy Code. See 11 U.S.C. § 101(54) (transfer includes every mode of disposition of property or an interest in property). Thus, Lawson’s grant of a deed of trust on the Edgemar residence to her mother constitutes a transfer of property for the purposes of section 727(a)(2). The parties do not dispute that the transfer at issue took place and also agree it was recorded more than one year prior to the filing of the petition. Pursuant to the one-year time limitation in section 727(a)(2)(A), the deed of trust could not serve alone as a basis for denying Lawson’s discharge. The bankruptcy court accepted that Lawson’s mother was a creditor and that the deed of trust, although preferential, was not necessarily a fraudulent transfer. The question presented in this appeal, however, is whether the transfer could serve as a basis for a concealment of property within the one year prior to filing of the petition. Under the “continuing concealment” doctrine, a transfer made and recorded more than one year prior to filing may serve as evidence of the requisite act of concealment where the debtor retains a secret benefit of ownership in the transferred property within the year prior to filing. See In re Olivier, 819 F.2d 550, 555 (5th Cir.1987) (citing and discussing cases). Our circuit has not yet adopted the doctrine of “continuing concealment,” but the" }, { "docid": "20246716", "title": "", "text": "and SOFA, that the false oaths related to material facts, and that they were made knowingly and fraudulently. See 11 U.S.C. § 727(a)(4)(A); see also In re Roberts, 331 B.R. at 882. We, therefore, affirm the bankruptcy court’s denial of Retz’s discharge pursuant to § 727(a)(4)(A). B The bankruptcy court also denied Retz’s discharge under both subsections of § 727(a)(2). That section states: The court shall grant the debtor a discharge, unless ... 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 (B) property of the estate, after the date of the filing of the petition. 11 U.S.C. § 727(a)(2). A party seeking denial of discharge under § 727(a)(2) must prove two things: “(1) a disposition of property, such as transfer or concealment, and (2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act [of] disposing of the property.” Hughes v. Lawson (In re Lawson), 122 F.3d 1237, 1240 (9th Cir.1997). A debtor’s intent need not be fraudulent to meet the requirements of § 727(a)(2). Because the language of the statute is in the disjunctive it is sufficient if the debtor’s intent is to hinder or delay a creditor. In re Bernard, 96 F.3d at 1281. Furthermore, “lack of injury to creditors is irrelevant for purposes of denying a discharge in bankruptcy.” Id. at 1281-82 (quoting In re Adeeb, 787 F.2d at 1343). In examining the circumstances of a transfer under § 727(a)(2), certain “badges of fraud” may support a finding of fraudulent intent. These factors, not all of which need be present, include (1) a close relationship between the transferor and the transferee; (2) that the transfer was in anticipation of a pending suit; (3) that the trans-feror Debtor was insolvent or in poor financial condition at the time;" }, { "docid": "15824384", "title": "", "text": "It provides in relevant part as follows: (a) The court shall grant the debtor a discharge, unless — .... (2) the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, ... [or] concealed ...— (A) property of the debtor, within one year before the date of the filing of the petition; or ... (3) the debtor has concealed, destroyed, ... or failed to keep or preserve any recorded information ... 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; [and]... (5) the debtor has failed to explain satisfactorily -... any loss of assets or deficiency of assets to meet the debt- or’s liabilities.... 11 U.S.C. § 727(a). Section 727(a) must be construed liberally in favor of the debtor and against a creditor objecting to the debtor’s discharge. Applying one of the exceptions to discharge is an extreme measure which should not be undertaken lightly. Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). As previously stated, a denial generally of a bankruptcy discharge is the most substantial sanction meted out in this court. A creditor objecting to a debtor’s discharge bears the initial burden of proving that the case falls within one of the exceptions. They must prove facts essential to that particular exception. Meridian Bank v. Alten, 958 F.2d 1226, 1232 (3d Cir.1992). § 727(a)(2)(A). The exception to discharge found at § 727(a)(2)(A) is comprised of two basic components: an act (e.g., a transfer or a concealment of debtor’s property); and an improper motive (i.e., a subjective intent to hinder, delay, or defraud a creditor). Rosen, 996 F.2d at 1531. The objecting party must establish that both of these components were present during the one year period before bankruptcy; anything occurring before that one year period “is forgiven”. Id. To prevail under § 727(a)(2)(A), one must prove that: (1) the debtor; (2) transferred or concealed; (3) debtor’s property; (4) with intent to hinder, delay, or defraud a creditor; (5) within one year prior to" }, { "docid": "12999741", "title": "", "text": "the trustee brought this action to deny the debtor’s discharge under several subsections of 11 U.S.C. § 727. II. The first section relied upon by the trustee, § 727(a)(2)(A), provides: (a) The court shall grant the debtor a discharge, unless— (2) 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!.] 11 U.S.C. § 727(a)(2)(A). “This section encompasses two elements: 1) a disposition of property, such as concealment, and 2) ‘a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act disposing of the property.’ ” Keeney v. Smith (In re Keeney), 227 F.3d 679 (6th Cir.2000) (quoting Hughes v. Lawson (In re Lawson), 122 F.3d 1237, 1240 (9th Cir.1997)). The trustee asserts that two transfers of the debtor’s property within the year prior to filing require that the debt- or’s discharge be denied. The debtor paid $100,000 to Hicks Construction Co. and $27,589.37 to Professional Designers & Developers. Both transfers occurred when Cutler refinanced his home. While not denying that these transfers occurred, Cutler asserts that they were not done with fraudulent intent. Intent to defraud can be inferred when the following “badges of fraud” are present: 1. The lack or inadequacy of consideration; 2. A family, friendship, or other close associate relationship between the parties; 3. The retention of possession, benefit, or use of the property in question; 4. The financial condition of the party sought to be charged both before and after the transaction in question; 5. The existence or cumulative effect of a pattern or series of transactions or course of conduct after incurring of debt, onset of financial difficulties, or pendency or thereat of suit by creditors; and 6. The general chronology of events and transaction. HSBC Bank U.S.A. v. Handel (In re Handel), 266 B.R. 585, 589 (Bankr.S.D.N.Y." }, { "docid": "18519508", "title": "", "text": "valid and enforceable interests, it is appropriate to deny the debtor a discharge under the theory of continuing concealment. Memorandum and order at 4. The debtor once again appeals. STANDARD OF REVIEW When the bankruptcy court denies a debtor’s discharge, a finding that the debt- or acted with the intent to hinder, delay or defraud his creditors is reviewed for clear error. In re Adeeb, 787 F.2d 1339, 1342 (9th Cir.1986). So too are findings that the debt- or transferred or concealed assets. The bankruptcy court’s conclusions of law are reviewed de novo. Id. ISSUE PRESENTED Whether the court’s finding was clearly erroneous that the debtor concealed assets within one year before the date of filing the petition for relief with the intent to hinder, delay, or defraud a creditor. DISCUSSION As pertinent to the issue on appeal, § 727 states: (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor ... has ... concealed— (A) property of the debtor, within one year before the date of the filing of the petition. 11 U.S.C. § 727(a)(2)(A) (emphasis supplied). Section 727 “is the heart of the fresh start provisions of the bankruptcy law.” H.R.Rep. 595, 95th Cong., 1st Sess. 384 (1977); S.Rep. 989, 95th Cong., 2d Sess. 98 (1978) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5884, 5963, 6340; In re Rosen, 996 F.2d 1527, 1531 (3rd Cir.1993). As such, it is to be construed liberally in favor of the debt- or and strictly against the objector. Id.; In re Adeeb, 787 F.2d at 1342. An objection to discharge under § 727(a)(2)(A) is comprised of two elements: 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act disposing of the property. Both elements must take place within the one-year pre-filing period; acts and intentions occurring prior to this period will be forgiven. Rosen, 996 F.2d at 1531. Granting of security for a debt is a transfer under the Bankruptcy Code." }, { "docid": "15914468", "title": "", "text": "the property to the bankruptcy court. II. Keeney appeals the denial of discharge in bankruptcy to this court, arguing that application of the continuous concealment doctrine to bar his discharge was improper. This court reviews the bankruptcy court’s findings of fact for clear error, and the district court’s conclusions of law de novo. See Wesbanco Bank Barnesville v. Rafoth (In re Baker & Getty Fin. Servs., Inc.), 106 F.3d 1255, 1259 (6th Cir.), cert. denied, 522 U.S. 816, 118 S.Ct. 65, 139 L.Ed.2d 27 (1997). The elements of a violation of 11 U.S.C. § 727 must be proven by a preponderance of the evidence to merit denial of discharge. See Barclays/American Bus. Credit, Inc. v. Adams (In re Adams), 31 F.3d 389, 394 (6th Cir.1994), cert. denied, 513 U.S. 1111, 115 S.Ct. 903, 130 L.Ed.2d 786 (1995). The Bankruptcy Code should be construed liberally in favor of the debtor. See Gillickson v. Brown (In re Brown), 108 F.3d 1290, 1292 (10th Cir.1997). A. Keeney first argues that the bankruptcy and district courts erred in applying the continuing concealment doctrine to find that he had violated section 727(a)(2)(A). That section specifies that: (a) The court shall grant the debtor discharge, unless— (2) 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 ... concealed, or has permitted to be ... concealed— (A) property of the debtor, within one year before the date of the filing of the petition!.] 11 U.S.C. § 727(a)(2)(A) (1993). This section encompasses two elements: 1) a disposition of property, such as concealment, and 2) “a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act disposing of the property.” Hughes v. Lawson (In re Lawson), 122 F.3d 1237, 1240 (9th Cir.1997). The bankruptcy and district courts determined that Keeney had concealed his beneficial interest in the two properties by placing them in his parents’ names, with the requisite intent to defraud. Keeney argues on appeal that he had nothing to conceal because he has no" }, { "docid": "18252123", "title": "", "text": "that the bankruptcy court clearly erred in its findings on (a) what property of Childrens Dental was transferred to Lowell Dentistry and (b) whether Watman acted with intent to hinder, delay, or defraud his creditors. Watman also argues that the bankruptcy court erred in its approach to the inquiry on remand by reversing some of its initial factual findings without hearing additional evidence and exceeding the scope of remand. We address these arguments in turn. A. The bankruptcy court’s findings of fraudulent transfer under 11 U.S.C. § 727(a)(2)(A) On remand, the bankruptcy court concluded that Watman is precluded under 11 U.S.C. § 727(a)(7), applying § 727(a)(2)(A), from receiving a discharge in Chapter 7 bankruptcy. Section 727(a)(2)(A) states: The court shall grant the debtor a discharge, unless ... 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, de stroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed [ ] property of the debtor, within one year before the date of the filing of the petition[.] 11 U.S.C. § 727(a)(2)(A). We explained in Watman I that in order for a debtor to be denied a discharge under § 727(a)(2), an objector must show by a preponderance of the evidence that (1) the debtor transferred, removed, destroyed, mutilated, or concealed (2) his or her property (or the property of the estate if the transfer occurs post-petition) (3) within one year of the petition filing date (for prepetition transfers) (4) with intent to hinder, delay or defraud a creditor. SOI F.3d at 7. Groman, as the party requesting the denial of the discharge in this case, has the burden of establishing these elements. Fed. R. Bankr.P. 4005; see also Watman I, 301 F.3d at 7. 1. Property of Childrens Dental transferred to Lowell Dentistry Under the first two elements of the fraudulent transfer test under 11 U.S.C. § 727(a)(2), as applicable here ■ under § 727(a)(7), Groman must show that Watman transferred or concealed property that belonged to Childrens" }, { "docid": "9936222", "title": "", "text": "should not be taken lightly, and its application should be construed liberally in favor of the debtor. Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). Under 727(a)(2) , the plaintiff must show that the act complained of was: (1) done by the debtor and; (2) involved transferring, removing, destroying, mutilating or concealing any of the debtor’s property; (3) within one year before the date of the petition or postpetition; (4) with the actual intent to hinder, delay, or defraud a creditor. In re Scimeca, Adv. No. 91-2615,1993 WL 744485 (Bankr.D.N.J. July 14, 1993), aff'd, 169 B.R. 536 (D.N.J.1993). See also In re Brown, 108 F.3d 1290, 1293 (10th Cir. 1997). A transfer is defined in section 101 as “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 and foreclosure of the debtor’s equity of redemption.” 11 U.S.C. § 101(54). The party objecting to the discharge under section 727(a)(2) must prove that “an act (i.e. a transfer or a concealment of property) and an improper intent .:. were present during the one year period before bankruptcy; anything occurring before that one year period is forgiven.” Rosen, 996 F.2d at 1530. However an act may occur outside that one year period and still be actionable under section 727(a)(2) if it involves a “continuing concealment.” Id. at 1531. The rationale under this doctrine is that “a concealment will be found to exist during the year before bankruptcy even if the initial act of concealment took place before this one year period as long as the debtor allowed the property to remain concealed into the critical year.” Id. This principle “recognizes that a failure to reveal property previously concealed can, in some circumstances, properly be considered culpable conduct during the year before bankruptcy warranting a denial of discharge.” Id. To satisfy the concealment doctrine, the debt- or must have had a property interest to conceal, and the concealment must have been motivated by an improper intent. Section 727(a)(2) does not" }, { "docid": "18519509", "title": "", "text": "before the date of the filing of the petition. 11 U.S.C. § 727(a)(2)(A) (emphasis supplied). Section 727 “is the heart of the fresh start provisions of the bankruptcy law.” H.R.Rep. 595, 95th Cong., 1st Sess. 384 (1977); S.Rep. 989, 95th Cong., 2d Sess. 98 (1978) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5884, 5963, 6340; In re Rosen, 996 F.2d 1527, 1531 (3rd Cir.1993). As such, it is to be construed liberally in favor of the debt- or and strictly against the objector. Id.; In re Adeeb, 787 F.2d at 1342. An objection to discharge under § 727(a)(2)(A) is comprised of two elements: 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act disposing of the property. Both elements must take place within the one-year pre-filing period; acts and intentions occurring prior to this period will be forgiven. Rosen, 996 F.2d at 1531. Granting of security for a debt is a transfer under the Bankruptcy Code. See § 101(54) (transfer includes every mode of disposition of property or an interest in property). Thus, the debtor’s grant of a deed of trust on the Edgemar residence to her mother constitutes a transfer of property for the purposes of § 727(a)(2). The parties agree that the transfer at issue took place and also agree it was recorded more than one year prior to the filing of the petition. Pursuant to the one-year time limitation in § 727(a)(2)(A), the deed of trust alone could not serve as a basis for denying the debtor’s discharge. The court accepted that the debtor’s mother was a creditor and that the deed of trust, although preferential, was not necessarily a fraudulent transfer. This finding is not necessarily pertinent to the question of continuing concealment. The question presented is whether the transfer could serve as a basis for a concealment of property within the one year prior to filing of the petition. Under the “continuing concealment” doctrine, a transfer made and recorded more than one year prior to filing" }, { "docid": "18519507", "title": "", "text": "reaffirmed its prior ruling and elaborated its reasoning in a “Memorandum and order” (the “Memorandum”). The Memorandum focuses on the debtor’s loan from Elsam and the subordination of her mother’s deed of trust as evidence that the transfer was a sham, with the debtor retaining a secret benefit in the form of use and control of the property. The Memorandum states: But it is her mother’s subordination that gives proof to our conclusion that Ms. Lawson’s transfer to her mother was a continuing concealment of Ms. Lawson’s true interest in the residence. Ms. Lawson derived an equitable benefit by being able to use her residence for collateral for a new loan, free and clear of her mother’s supposed interest in the residence, the grant of which interest had overencum-bered the property. This is sufficient under the preponderance of evidence standard to establish a continuing concealment. Where a plaintiff can prove that a debtor retained control over property to the extent that she was able to use it as collateral by having family members subordinate supposedly valid and enforceable interests, it is appropriate to deny the debtor a discharge under the theory of continuing concealment. Memorandum and order at 4. The debtor once again appeals. STANDARD OF REVIEW When the bankruptcy court denies a debtor’s discharge, a finding that the debt- or acted with the intent to hinder, delay or defraud his creditors is reviewed for clear error. In re Adeeb, 787 F.2d 1339, 1342 (9th Cir.1986). So too are findings that the debt- or transferred or concealed assets. The bankruptcy court’s conclusions of law are reviewed de novo. Id. ISSUE PRESENTED Whether the court’s finding was clearly erroneous that the debtor concealed assets within one year before the date of filing the petition for relief with the intent to hinder, delay, or defraud a creditor. DISCUSSION As pertinent to the issue on appeal, § 727 states: (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor ... has ... concealed— (A) property of the debtor, within one year" }, { "docid": "17920321", "title": "", "text": "Machinery Rental, Inc. v. Herpel (In re Multiponics, Inc.), 622 F.2d 709, 713 (5th Cir.1980); Stafos v. Jarvis, 477 F.2d 369, 372 (10th Cir.1973), cert. denied, 414 U.S. 944, 94 S.Ct. 230, 38 L.Ed.2d 168; 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil §§ 2588, 2589 (1971). The appellee sought relief under 11 U.S.C. § 727(a)(2), which states: (a) The court shall grant the debtor a discharge, unless — _ (2) the debtor, with intent to hinder, delay, or defraud a creditor ..., has transferred, ... (A) property of the debtor, within one year before the date of the filing of the petition; or.... “Under this statute, four elements are required to be proven. The plaintiff must prove that: 1. A transfer of property has occurred; 2. It was property of the debtor; 3. The transfer was within one year of the date of the filing of the petition; 4. The defendant had, at the time of the transfer, the intent to hinder, delay or defraud a creditor.” First National Bank & Trust Co. v. Reed (In re Reed), 18 B.R. 462, 463 (Bankr.E.D.Tenn.1982). The parties are not contesting the first two elements; their disputes lie in the latter two. A. ONE YEAR The bankruptcy judge correctly concluded that the transfer of property had happened within one year of filing a petition in bankruptcy. The factual basis reveals that the deed conveying to the tenants by the entireties was recorded July 13, 1982 at 3:52 p.m. and the debtor’s Chapter 7 petition was filed on July 13, 1983 at 8:30 a.m. To measure a period of time, there must be a point of beginning. The transfer of property triggers the clock. Thus, the first determination is what is a transfer. 11 U.S.C. § 101(40) defines a transfer as: 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. The proof must show “an actual transfer of valuable property belonging to the debt- or which reduced" }, { "docid": "18519510", "title": "", "text": "See § 101(54) (transfer includes every mode of disposition of property or an interest in property). Thus, the debtor’s grant of a deed of trust on the Edgemar residence to her mother constitutes a transfer of property for the purposes of § 727(a)(2). The parties agree that the transfer at issue took place and also agree it was recorded more than one year prior to the filing of the petition. Pursuant to the one-year time limitation in § 727(a)(2)(A), the deed of trust alone could not serve as a basis for denying the debtor’s discharge. The court accepted that the debtor’s mother was a creditor and that the deed of trust, although preferential, was not necessarily a fraudulent transfer. This finding is not necessarily pertinent to the question of continuing concealment. The question presented is whether the transfer could serve as a basis for a concealment of property within the one year prior to filing of the petition. Under the “continuing concealment” doctrine, a transfer made and recorded more than one year prior to filing may serve as evidence of the requisite act of concealment where the debtor retains a secret benefit of ownership in the transferred property within the year prior to filing. See In re Olivier, 819 F.2d 550, 555 (5th Cir.1987) (citing and discussing cases). For example, in Olivier, debtor spouses, when faced with liability in a serious personal injury lawsuit, transferred title to their home to the wife’s mother and properly recorded the transfer some seven years prior to filing their petition. Debtors continued to live in and maintain the property up to filing their petition. The bankruptcy court found that the facts demonstrated the debtors retained a secret beneficial interest in the legally transferred property which constituted a continuing concealment of the property interest from creditors within the year prior to the filing of the petition such that discharge was denied. Thus, where evidence demonstrates that, despite an ostensible transfer of property, the debtor retained a secret interest that could be realized by her creditors, such a sham transaction would suffice to deny her a" }, { "docid": "12999740", "title": "", "text": "of the number of creditors, amount of assets and amount of debt. The petition also classified the debt as primarily consumer/nonbusiness, when clearly the vast majority of debts listed in schedule F were business debts. Additionally, schedule I stated that Cutler was “unemployed,” although he holds the position of pastor at Grace Gospel Church. The church bylaws entitle him to “compensation as approved by the executive board.” Cutler and his former attorney, Charles Schneider, both testified that Grace Gospel Church paid Cutler’s bankruptcy expenses as a form of compensation. Grace Gospel Church also made several of the lease payments on Cutler’s 2001 Cadillac automobile. Additionally, due to Cutler’s neglect, business records from Professional Engineers & Designers that were stored at Your Personal Vault storage facility were destroyed prior to the bankruptcy. Your Personal Vault sent Cutler a notice that the contents of the storage unit would be sold if past due payments were not remitted. Cutler did not pay the past due amount and the contents were sold and ultimately destroyed. Based on these facts, the trustee brought this action to deny the debtor’s discharge under several subsections of 11 U.S.C. § 727. II. The first section relied upon by the trustee, § 727(a)(2)(A), provides: (a) The court shall grant the debtor a discharge, unless— (2) 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!.] 11 U.S.C. § 727(a)(2)(A). “This section encompasses two elements: 1) a disposition of property, such as concealment, and 2) ‘a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act disposing of the property.’ ” Keeney v. Smith (In re Keeney), 227 F.3d 679 (6th Cir.2000) (quoting Hughes v. Lawson (In re Lawson), 122 F.3d 1237, 1240 (9th Cir.1997)). The trustee asserts that two transfers of the debtor’s" }, { "docid": "1491511", "title": "", "text": "February 2004. (Id. at 52). These events were documented, at least in part, with exhibits that Cohen and Bernau themselves introduced into evidence. (See P. Exs. 13, 16). What happened to the beneficial interest in the land trust was no mystery, either. Because the evidence did not show that Olbur failed to explain satisfactorily any loss or deficiency of assets, judgment will be entered in Olbur’s favor on the section 727(a)(5) claim. b. Section 727(a)(2)(A) Cohen and Bernau are more successful on their claim that Olbur should be denied a discharge under section 727(a)(2)(A). Section 727(a)(2)(A) denies a discharge to a debtor who, “with intent to hinder, delay, or defraud a creditor ..., has transferred, removed, destroyed, mutilated, or concealed ... property of the debtor, within one year before the date of the filing of the petition.” 11 U.S.C. § 727(a)(2)(A). This exception to discharge has two elements: “an act (i.e., a transfer or a concealment of property) and an improper intent (i.e., a subjective intent to hinder, delay or defraud a creditor).” In re Kontrick, 295 F.3d 724, 736 (7th Cir.2002) (internal quotation omitted), affd on other grounds sub nom. Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004); Jeffrey M. Goldberg & Assocs., Ltd. v. Holstein (In re Holstein), 299 B.R. 211, 226-27 (Bankr.N.D.Ill.2003). Both elements must have been present during the year before bankruptcy; anything earlier is “forgiven.” Kontrick, 295 F.3d at 736; Holstein, 299 B.R. at 227. [14] Cohen and Bernau proved the first element. Olbur’s beneficial interest in the land trust was “property” for purposes of section 727(a)(2)(A). See Stowell, 232 B.R. at 825 (finding debtor’s beneficial interest to be property of the estate under section 541(a)); Albion Prod. Credit Ass’n v. Langley (In re Langley), 30 B.R. 595, 598-99 (Bankr.N.D.Ind.1983). Olbur transferred that property to his wife and son. The Code defines transfer “broadly,” McWilliams, 284 F.3d at 793, to include “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property.” 11 U.S.C. § 101(54). Under" }, { "docid": "3099728", "title": "", "text": "to his bankruptcy filing by leaving it behind when he closed K-Lor. They argue that debtor therefore should be denied a general discharge in accordance with § 727(a)(2)(A), which provides in part as follows: (a) The court shall grant a debtor a discharge, unless — .... (2) the debtor, with intent to hinder, delay, or defraud a creditor ..., has transferred, removed, destroyed, mutilated or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the estate, within one year before the date of the filing of the petition;... 11 U.S.C. § 727(a)(2)(A). Section 727(a) should be construed liberally in favor of a debtor in bankruptcy and against a party objecting to the debtor’s discharge. Applying one of the exceptions to discharge is an extreme measure and must not be lightly undertaken. Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). A party objecting to a debtor’s discharge has burden of proving that the case falls within one of the exceptions enumerated at § 727(a). The objector must prove facts essential to that particular exception. Meridian Bank v. Alten, 958 F.2d 1226, 1232 (3d Cir.1992). The' exception to discharge found at § 727(a)(2)(A) is comprised of two basic components: an act — e.g., a transfer or concealment — , and an improper motive — i.e., a subjective intent to hinder, delay or defraud a creditor. Rosen, 996 F.2d at 1531. A creditor objecting to the debtor’s discharge must establish the presence of both of these components during the one-year period preceding the bankruptcy; anything occurring outside of this window is “forgiven”. Id. To prevail under § 727(a)(2)(A) in this case, plaintiffs must prove that: (1) the debtor; (2) transferred; (3) debtor’s property; . (4) with intent to hinder, delay, or defraud a creditor; (5) within one year prior to the bankruptcy filing. In re Kontrick, 295 F.3d 724, 736 (7th Cir.2002). The required intent must be actual; constructive fraud will not suffice. Groman v. Watman (In re Watman), 301 F.3d 3, 8 (1st Cir.2002). Because actual intent ordinarily is difficult to prove directly, it may" }, { "docid": "19150106", "title": "", "text": "actual fraud. (Id.). 16. Trial was held on July 8,1997, August 6,1997, and September 8,1997. CONCLUSIONS OF LAW A bankruptcy discharge permanently enjoins creditors from collecting debts protected by the discharge. A debtor. is entitled to a discharge so long as the debtor has not engaged in fraudulent or improper activity in disclosing his or her financial condition to the Court. The terms for denying discharge are codified in § 727 of the Bankruptcy Code. 11 U.S.C. § 727 (1997). Plaintiff contends that denial of Defendant’s discharge is warranted pursuant to §§ 727(a)(2), (a)(3), and (a)(4). First, Plaintiff alleges that Defendant concealed her interest in property with the intent to hinder, delay, or defraud her creditors. Second, that Defendant deliberately omitted material information and provided false testimony during the pendency of her bankruptcy case. The third allegation is that Defendant failed to maintain adequate records which prevented her creditors from ascertaining her financial condition or business transactions. Plaintiff also seeks to except from discharge, pursuant to § 523(a)(2)(A), its state fraudulent conveyance action against Defendant. The Court will now examine each of Plaintiffs allegations. Section 727(a)(2)(A) Section 727(a)(2)(A) provides that the court is to grant a debtor a discharge, unless— (2) 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; 11 U.S.C. § 727(a)(2)(A) (1997). Denial of discharge under § 727(a)(2)(A) requires the objecting party to show by a preponderance of the evidence: (i) that a transfer occurred; (ii) that the property transferred was property of the debtor; (in) that the transfer was within one year of petition; and (iv) that at the time of the transfer, the debtor possessed the requisite intent to hinder, delay, or defraud a creditor. Mahon v. Milam (In re Milam), 172 B.R. 371, 374 (Bankr.M.D.Fla.1994). The requisite intent to hinder, delay, or defraud" }, { "docid": "14255279", "title": "", "text": "appealed. STANDARD OF REVIEW Decisions of the Bankruptcy Appellate Panel are reviewed de novo. In re Alsberg, 68 F.3d 312, 314 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1568, 134 L.Ed.2d 667 (1996). The panel independently reviews the bankruptcy court’s rulings on appeal from the BAP. In re Roosevelt, 87 F.3d 311, 313 (9th Cir.1996). The panel reviews the bankruptcy court’s conclusions of law de novo and its findings of fact for clear error. Alsberg, 68 F.3d at 314. When a bankruptcy court denies a debtor’s discharge, a finding that the debtor acted with the intent to hinder, delay or defraud his creditors is reviewed for clear error. In re Adeeb, 787 F.2d 1339, 1342 (9th Cir.1986). DISCUSSION Lawson contends that the bankruptcy court clearly erred in finding that she concealed assets within one year before the date of filing the petition for relief with the intent to defraud, hinder, or delay a creditor. We disagree. Section 727 of the United States Bankruptcy Code directs courts to grant a debtor a discharge unless (2) the debtor, with intent to hinder, delay, or defraud a creditor ... has ... concealed— (A) property of the debtor, within one year before the date of the filing of the petition. 11 U.S.C. § 727(a)(2)(A). Thus, two elements comprise an objection to discharge under § 727(a)(2)(A): 1) a disposition of property, such as transfer or concealment, and 2) a subjective intent on the debtor’s part to hinder, delay or defraud a creditor through the act disposing of the property. Both elements must take place within the one-year pre-filing period; acts and intentions occurring prior to this period will be forgiven. See Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). Granting of security for a debt is a transfer under the Bankruptcy Code. See 11 U.S.C. § 101(54) (transfer includes every mode of disposition of property or an interest in property). Thus, Lawson’s grant of a deed of trust on the Edgemar residence to her mother constitutes a transfer of property for the purposes of section 727(a)(2). The parties do not dispute that" } ]

[ { "docid": "14321227", "title": "", "text": "beyond the scope of redress under supervisory powers by dismissal or reversal. Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228 (1988); Hasting, 461 U.S. at 506, 103 S.Ct. at 1979; United States v. Hastings, 847 F.2d 920, 927-28 (1st Cir.), cert. denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988). The circumstances of the discovery default in Osorio’s case do not require invoking our supervisory powers. The government’s misconduct has not been characterized as anything other than negligence, albeit “astounding.” And Osorio, who chose to seek no special remedy in the district court, has failed to show that the outcome of his trial was prejudiced by the delayed disclosure of the evidence of Caruso’s past drug dealings. We thus affirm the trial judge’s decision to deny the motion for a new trial. III. The defendant also claims error in the district court’s refusal of a downward adjustment for his role in the offense under section 3B1.2 of the sentencing guidelines, and, in addition, its refusal of his request for findings of fact and rulings of law on the issue. Section 3B1.2 provides for a downward adjustment in the offense level based on a defendant’s mitigating role in the offense, 4 levels if he was a “minimal” participant (plainly among the least culpable of the group), or 2 levels if he was a “minor” participant (less culpable than most other participants, but not to the point described as minimal) in any criminal activity. See U.S.S.G. § 3B1.2 (1989). Osorio argues that he should have been given such a mitigating adjustment because his participation in the criminal activity was limited and was less than that of his codefendants. This question involves the application of the guidelines to the facts of Osorio's case, and is subject to our review under a clearly erroneous standard. See generally United States v. Morales-Diaz, 925 F.2d 535, 540 (1st Cir.1991); Diaz-Villafane, 874 F.2d at 49; United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989). This standard of review recognizes that application of the guidelines depends" } ]

[ { "docid": "11285525", "title": "", "text": "of the Guidelines, he was entitled to a two-level reduction of his offense level because as a drug courier, he played only a minor role in the offense. At the sentencing hearing held on December 2, 2015, counsel argued that Torres-Hernandez should receive an adjustment based on Amendment 794 to the Guidelines, which had become effective one month earlier, on November 1,2015, because he was one of several men crossing the river with a backpack of marijuana,. there was* no evidence he was in possession of a radio or map, Torres-Hernandez did not know the ultimate destination of the drugs, and he did not have any authority to decide or influence the destination of the drugs. The prosecutor countered that Torres-Hernandez had previously committed the same offense, served 54 months of a mandatory 60 months* prison sentence, had been deported in January 2014, and had committed the instant offense in the same manner and place less than one year later. The prosecutor argued that the district court could infer from this prior conviction that Torres-Hernandez had some knowledge of the drug trafficking organization and how it worked. The prosecutor also argued that Torres-Hernandez’s violation of the law was flagrant and warranted a sentence at the top of the advisory sentencing range. After hearing these arguments, the’district court declined to grant a minor role adjustment and sentenced Torres-Hernandez to 57 months of imprisonment for the possession-with-intent-to-distribute offense. Torres-Hernandez was also in violation of his term of supervised release imposed for his prior drug trafficking offense, and the district court sentenced him to 18 months of imprisonment consecutive to the 57 months’ sentence. Torres-Hernandez appeals his 57 months’ sentence. The sentence for the violation of supervised release imposed in the prior judgment of conviction is not at issue in this appeal. II Torres-Hernandez contends’ that Amendment 794 materially changed the factors that a sentencing court should consider in deciding whether to apply a mitigating role adjustment under § 3B1.2. He asserts that the district court misapplied the law in assessing whether he should have recéived a minor role adjustment. Section 3B1.2 of" }, { "docid": "8485222", "title": "", "text": "F.3d at 100 (requiring “specific facts” to justify Booker remand, not merely recitation of sentencing factors). Moreover, the district court’s comments at sentencing suggest that Torres-Santiago would be far more likely to receive a harsher sentence, not a more lenient one, on remand. See United States v. Mercado, 412 F.3d 243, 253 (1st Cir.2005). Finding no prejudice, we affirm the sentence imposed by the district court. B. Cosme-Piri Pursuant to a plea agreement with the government, Cosme-Piri stipulated that he was responsible for “not less than one hundred fifty kilograms of cocaine” and that “such amount should be the proper drug quantity to be considered” for sentencing purposes. He also stipulated to a two-level enhancement for possession of a firearm and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a) (2002). The parties agreed that the applicable sentencing range under the guidelines was from 235 to 293 months’ imprisonment; the district court sentenced him to 252 months as provided in the plea agreement. Like Torres-Santiago, Cosme-Piri argues that consideration of the § 3553(a) factors would have led to a more lenient sentence under an advisory guidelines regime. However, also like Torres-Santiago, Cosme-Piri puts forth no facts that he would offer on remand to justify a more lenient sentence, save for those arguments already considered and rejected by the district court at sentencing. Although the district court was aware that it was not required to honor the 252-month sentencing recommendation stipulated to in the plea agreement, it did so nonetheless, even in the face of Cosme-Piri’s claim that he was less culpable than his co-defendants due to his shorter participation in the conspiracy. There is nothing to suggest that the district court would weigh the duration of Cosme-Piri’s participation in the conspiracy any differently under an advisory guidelines regime. C. Ortiz-Torres Pursuant to a plea agreement, Ortiz-Torres stipulated that he was responsible for at least 150 kilograms of cocaine. He also stipulated to a two-level enhancement for possession of a firearm and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a) (2002). The plea agreement provided that" }, { "docid": "23103008", "title": "", "text": "defendant.” U.S.S.G. § 3C1.1, comment (n. 2). As the district court correctly observed, however, comment 2 does not require that all conflicts in testimony be resolved in favor of the defendant, but “simply instructs the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction.” United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir.1989); see also Matos, 907 F.2d at 276; Wallace, 904 F.2d at 605; Beaulieu, 900 F.2d at 1541. Batista-Polanco testified that he had been at the apartment for only forty-five minutes by the time the search party arrived; on rebuttal, the surveillant testified that Batista-Polanco did not enter the building between 8:15 and 10:30 that morning. After weighing the credibility of these two witnesses, the trial court formed the firm belief that Batista-Polanco had testified falsely as to a material fact. Due deference to the district court’s credibility determination, based on its personal observation and evaluation of the witnesses, compels our conclusion that Batista-Polanco’s claim is meritless. Role in Offense Finally, the district court committed no error in determining that BatistaPolanco was more than a “minor participant” in the heroin conspiracy, hence that there was no basis for a two-point downward adjustment pursuant to U.S.S.G. § 3B1.2(b). See United States v. Paz Uribe, 891 F.2d 396, 399 (1st Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990); United States v. Wright, 873 F.2d 437, 444 (1st Cir.1989) (both holding that § 3B1.2 determination as to whether defendant was “minor participant” requires “clear error” review). A “minor participant” is one “who plays a part in committing the offense that makes him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2, comment (backg'd). The circumstantial evidence before the district court was sufficient to establish that Batista-Polanco, one of six men who were present for at least two hours and fifteen minutes on the morning of April 26 in a small apartment with heroin milling and packaging paraphernalia and several thousand packets of heroin, occupied one of six seats at the" }, { "docid": "11285538", "title": "", "text": "a critical role in the offense. Counsel for Torres-Hernandez made arguments, based on Amendment 794 and the commentary to § 3B1.2, as to why Torres-Hernandez’s participation should be considered minor. The Government made counter arguments. The district court was not required to expressly weigh each factor in § 3B1.2 on the record. Based on the record of what was presented to the dis trict court in Torres-Hernandez’s written objections, his arguments at the sentencing hearing, and the Government’s responses, the district court considered and rejected counsel’s arguments, not because the district court was unaware of or failed to consider the factors in the commentary to. § 3B1.2, but because it weighed the factors and concluded that based on the offense charged, which was possession of a controlled substance for distribution, and the defendant’s role in that offense as'compared to the others identified as participating, Torres-Hernandez was not entitled to an adjustment. The district court’s finding that Torres-Hernandez was not a minor participant and that he was not entitled to an adjustment is plausible based on the record. The commentary to § 3B1.2, including the explanations in Amendment 794 for th¿ revisions to that commentary, does not require, as a matter of law, that an adjustment must be made for transporters such as Torres-Hernandez. The commentary and Amendment 794 instead confirm that there are many factors that a sentencing court should consider, and how those factors are weighed remains within the sentencing court’s discretion. The Guidelines expressly, provide that whether to -grant a reduction in the offense level based on a defendant’s participation in the offense “involves a determination that is heavily dependent upon the facts of the particular case.” * * * We AFFIRM the district court’s judgment.' . The original indictment alleged more than 100 kilograms of marijuana, but a subsequent reweigh showed only 95 kilograms. . The defendant was also sentenced to 18 months to run consecutively for violation of the terms of his probation for a previous offense. . See U.S. Sentencing Guidelines Manual § 3B1.2 (U.S. Sentencing Comm'n 2015) [hereinafter U.S.S.G.]. , U.S.S.G. app. C, amend." }, { "docid": "8485221", "title": "", "text": "Instead, we require the appellant to present “specific facts” to justify a Booker remand. Kornegay, 410 F.3d at 100. A. Torres-Santiago Pursuant to a plea agreement, Torres-Santiago stipulated to being responsible for between 50 and 150 kilograms of cocaine for a base offense level of 36. See U.S.S.G. § 2D1.1(e)(2) (2002). He further stipulated to a two-level enhancement for possession of a firearm in relation to the charged crime, a four-level enhancement for his leadership role, and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3B1.1(a), 3E1.1(a) (2002). With a criminal history category of I, the applicable guidelines range would have been between 292 to 365 months; the district court sentenced him to 336 months’ imprisonment in accordance with the plea agreement. Torres-Santiago argues that consideration of the sentencing factors of 18 U.S.C. § 3553(a) would have resulted in a more lenient sentence under an advisory guideline regime. However, he fails to indicate how any of the listed factors would have created a reasonable probability of a more lenient sentence. See Kornegay, 410 F.3d at 100 (requiring “specific facts” to justify Booker remand, not merely recitation of sentencing factors). Moreover, the district court’s comments at sentencing suggest that Torres-Santiago would be far more likely to receive a harsher sentence, not a more lenient one, on remand. See United States v. Mercado, 412 F.3d 243, 253 (1st Cir.2005). Finding no prejudice, we affirm the sentence imposed by the district court. B. Cosme-Piri Pursuant to a plea agreement with the government, Cosme-Piri stipulated that he was responsible for “not less than one hundred fifty kilograms of cocaine” and that “such amount should be the proper drug quantity to be considered” for sentencing purposes. He also stipulated to a two-level enhancement for possession of a firearm and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a) (2002). The parties agreed that the applicable sentencing range under the guidelines was from 235 to 293 months’ imprisonment; the district court sentenced him to 252 months as provided in the plea agreement. Like Torres-Santiago, Cosme-Piri argues that consideration of the § 3553(a)" }, { "docid": "2526508", "title": "", "text": "which the plea was originally submitted based on ‘objective standards,’ and that where the district court has made such a determination, it should be set aside only if clearly erroneous.” Id. at 1168 (citation omitted). Based on our review of the record, we do not find the district court’s determination of the plea agreement to be clearly erroneous. Judge Mihm justifiably said at Torres’s sentencing, “I can tell you that if the Government had stood up and made a recommendation to depart downward, I would have ignored it under the record as I understand it.” Sentencing Hearing, Kenneth Torres, Feb. 20, 1992, at 166. We affirm Torres’s sentence. B. YANEZ Yanez alleges these four errors in his sentence for conspiracy and attempt: 1) the district court miscalculated the amount of drugs attributable to Yanez; 2) the court mistakenly believed Yanez possessed a weapon in the commission of the conspiracy; 3) the court falsely characterized his role in the conspiracy; and 4) the court wrongly found Defendant obstructed justice. Before addressing these allegations, we note our standard of review. 1. STANDARD OF REVIEW As was the case with Torres, each of Yanez’s four arguments concern the district court’s factual findings. See, e.g., United States v. Atkinson, 979 F.2d 1219, 1222 (7th Cir.1992) (“Determination of the quantity of drugs for sentencing purposes is a factual inquiry”); United States v. Caicedo, 937 F.2d 1227, 1233 (7th Cir.1991) (“determination that a defendant obstructed justice is a finding of fact”); United States v. Atterson, 926 F.2d 649, 661 (7th Cir.) (“the question of [defendant’s] role in the conspiracy was a question of fact for the district court to determine”), cert. denied, — U.S. -, 111 S.Ct. 2909, 115 L.Ed.2d 1072 (1991). That being the case, the “court’s findings of fact will not be disturbed unless clearly erroneous.” United States v. Franco, 909 F.2d 1042, 1045 (7th Cir.1990); see also 18 U.S.C. § 3742(e) (mandating standard of review). 2. AMOUNT OF DRUGS To determine Yanez’s Base Offense Level under the Guidelines, the district court needed to calculate the amount of drugs attributable to Defendant. U.S.S.G. §" }, { "docid": "8485220", "title": "", "text": "(1993)). Because the district court treated the guidelines as mandatory at sentencing, the first two requirements are satisfied. See, e.g., United States v. Kornegay, 410 F.3d 89, 99 (1st Cir.2005). At issue is whether appellants satisfy the third and the fourth. The operative question with respect to the third requirement is “whether defendant has shown a reasonable probability the sentencing judge would, in a non-mandatory Guidelines system, have imposed a more lenient sentence.” United States v. Ayala-Pizarro, 407 F.3d 25, 29 (1st Cir.), cert. denied, — U.S. -, 126 S.Ct. 247, 163 L.Ed.2d 226 (2005). We are not overly demanding in our proof; where the record or a plausible proffer reasonably indicates that an advisory guideline regime might have led the sentencing judge to a different result, we will remand for resentencing. United States v. Lewis, 406 F.3d 11, 21 (1st Cir.2005) (quoting United States v. Heldeman, 402 F.3d 220, 224 (1st Cir.2005)). However, the mere assertion that the district court would have imposed a more favorable sentence is insufficient. McLean, 409 F.3d at 505. Instead, we require the appellant to present “specific facts” to justify a Booker remand. Kornegay, 410 F.3d at 100. A. Torres-Santiago Pursuant to a plea agreement, Torres-Santiago stipulated to being responsible for between 50 and 150 kilograms of cocaine for a base offense level of 36. See U.S.S.G. § 2D1.1(e)(2) (2002). He further stipulated to a two-level enhancement for possession of a firearm in relation to the charged crime, a four-level enhancement for his leadership role, and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3B1.1(a), 3E1.1(a) (2002). With a criminal history category of I, the applicable guidelines range would have been between 292 to 365 months; the district court sentenced him to 336 months’ imprisonment in accordance with the plea agreement. Torres-Santiago argues that consideration of the sentencing factors of 18 U.S.C. § 3553(a) would have resulted in a more lenient sentence under an advisory guideline regime. However, he fails to indicate how any of the listed factors would have created a reasonable probability of a more lenient sentence. See Kornegay, 410" }, { "docid": "23397415", "title": "", "text": "adjustment because he was a “minimal participant,” or at least a two-level downward adjustment for being a “minor participant,” under guideline section 3B1.2. Counsel also objected to the report on the ground that the defendant had accepted personal responsibility for his role in the crime and on that basis also should receive a two-level downward adjustment. The court disagreed with both objections, finding the defendant’s claims incredible. The defendant declined to allo-cute. The court sentenced Nevarez-Arreo-la to 70 months imprisonment followed by five years supervised release, and made the mandatory fifty dollar assessment. II. Nevarez-Arreola appeals his sentence on two grounds. First, he contends that the district court erred in denying him minimal participant status, which would entitle him to a four-level downward sentence adjustment under guideline section 3B1.2. He claims that the record clearly shows his involvement was not significant until he actually delivered the heroin, and that he was subservient to Morales-Torres, who bargained with the government agents at the initial meeting and conducted the sub sequent telephone negotiations. He does not appeal the denial of minor participant status. Second, Nevarez-Arreola complains that the district court erred by refusing a two-level downward adjustment for acceptance of responsibility under guideline section 3E1.1. He points out that he did not attempt to escape arrest and that he pleaded guilty to the count on which he was sentenced. He explains his failure to give the arresting agents and the probation officer a more detailed explanation of the crime by claiming that as a minimal participant he was unable to relate a clearer account of his and Morales-Torres’ activities. III. Our role in reviewing sentences made under the guidelines is confined to determining whether a sentence was “imposed in violation of law” or “as a result of an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742(e). We must affirm guideline applications based on factual findings that are not clearly erroneous, United States v. Mejia-Orosco, 867 F.2d 216, 221, clarified on petition for reh’g, 868 F.2d 807 (5th Cir.) cert. denied, — U.S. -, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989)," }, { "docid": "1767596", "title": "", "text": "has not shown that the evidence would otherwise have been admissible. For the telephone record to have been admissible it would have had to have been authenticated under Federal Rule of Evidence 901 so that it would be admissible as a record of a regularly conducted activity under Federal Rule of Evidence 803(6). See Belber v. Lipson, 905 F.2d 549, 552 (1st Cir.1990) (authentication requires the custodian of records or other qualified witness). The defendant did not produce any witness from the telephone company to authenticate the telephone record as one kept in the regular course of business. As to the letter, it was hearsay not within any exception under Federal Rule of Evidence 802. Both records were properly excluded under the rules of evidence. C. Sentencing Lastly, the defendant claims that the district court erred in sentencing him. The district court awarded Perez Martinez a two-level downward adjustment to his offense level, based on its finding under U.S.S.G. section 3B1.2 that Perez was a “minor” participant in the conspiracy. Perez Martinez, insists, however, that he was entitled to a four point reduction in his base offense level because of his “minimal” role in the drug offense. In guidelines appeals, we review the district court’s application of role-in-the-offense adjustments under a “clearly erroneous” standard. United States v. Osorio, 929 F.2d 753, 764 (1st Cir.1991); Valencia-Lucena, 925 F.2d at 514; United States v. Wright, 873 F.2d 437, 444 (1st Cir.1989). “And where more than one reasonable inference may be drawn from undisputed facts, the court’s choice from among supportable alternatives cannot be clearly erroneous.” United States v. Rosado-Sierra, 938 F.2d 1, 2 (1st Cir.1991) (per curiam) (citing United States v. Trinidad De La Rosa, 916 F.2d 27, 29 (1st Cir.1990)). We find no error in the court’s determination that Perez Martinez was a “minor” rather than a “minimal” participant in the conspiracy. The two-level decrease for minor participation applies to “any participant who is less culpable than most other participants, but whose role could not be described as minimal,” U.S.S.G. § 3B1.2, comment, (n. 3), whereas the “infrequently” used four-level decrease" }, { "docid": "9340334", "title": "", "text": "as Ramirez wishes to raise an “ineffective assistance of counsel” claim that involves matters outside the trial record itself, he cannot raise it on direct appeal, but must do so through a collateral attack under 28 U.S.C. § 2255. See United States v. Arango-Echeberry, 927 F.2d 35, 39 (1st Cir.1991). III Sentencing Issues After the convictions, the district court determined that the appropriate Guideline sentencing range for Tabares was 78-97 months (Offense Level 28, Criminal History Category I). The court sentenced her to 78 months in prison. The court determined that the appropriate Guideline sentencing range for Ramirez was 292-365 months (Offense Level 36, Criminal History Category V). The court sentenced him to 324 months in prison. The appellants raise several legal objections to these sentences. 1. Tabares points out that, in reaching Level 28, the district court found that she was a “minor” participant in the crime and subtracted two offense levels. U.S.S.G. § 3B1.2(b). She argues that the district court should have found that she was a “minimal” participant and therefore subtracted four levels. § 3B1.2(a). The four level downward adjustment for a “minimal” participant is designed to “cover defendants who are plainly among the least culpable of those involved,” and is to “be used infrequently;” it would be “appropriate, for example,” for one who acts as a “courier” for a “small amount of drugs.” § 3B1.2, comment, (nn.l & 2). The two level downward adjustment for a “minor” participant is for a “participant who is less culpable than most other participants, but whose role could not be described as minimal.” § 3B1.2, comment, (n.3). The district court said that it was “not persuaded that Ms. Tabares is equally culpable with Mr. Ramirez,” but, in light of the drugs in plain sight and the readily accessible cash, could not “in good conscience classify her as a minimal participant.” It therefore classified her role as “minor.” And, we cannot say that its decision was “clearly erroneous.” United States v. Valencia-Lucena, 925 F.2d 506, 514 (1st Cir.1991) (citing United States v. Wright, 873 F.2d 437, 444 (1st Cir.1989)). 2. The" }, { "docid": "8222903", "title": "", "text": "people in this organization,” was “much less.” She reminded the court that the lone fact that she performed an indispensable role “is not ... determinative,” to which the government’s attorney responded, “as established by the Fifth Circuit, drug couriers are indispensable, they’re essential and instrumental and, without the defendant having driven the drugs across, the drugs never would have reached the U.S.” The court responded, “Yeah, I’m—I’m going to overrale the objection. I think her—she performed an essential task.” Ultimately, the court adopted the PSR, changing it only to reflect the safety-valve adjustment. It sentenced Bello-Sanchez below the guideline range to sixty months of imprisonment and three years of supervised release. II. Bello-Sanchez contends that (1) the denial of a mitigating-role adjustment was clearly erroneous, and (2) the district court committed reversible legal error by treating the essential nature of her task as outcome-determinative under U.S.S.G. § 3B1.2. She requests that this court vacate her sentence and either remand for resentencing with a mitigating-role adjustment or remand with an instruction for the district court to consider the factors listed in the commentary to § 3B1.2. In the alternative, she maintains that a remand is necessary because the court failed to articulate a permissible factual basis for denying the mitigating-role adjustment. We review the district court’s interpretation and application of the guidelines de novo and its factual finding that Bello-Sanchez was neither a minor nor minimal participant for clear error. United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016). The latter will not be deemed clearly erroneous if “plausible in light of the record as a whole,” United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005), and it is the defendant who bears the burden of showing the adjustment is warranted, United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). 1. Section 3B1.2 provides for a two-level decrease in the offense level if the defendant played a “minor” role in the criminal activity, a four-level decrease if his role was “minimal,” and a three-level reduction for conduct falling between the two. § 3B1.2(a), (b). A" }, { "docid": "8485223", "title": "", "text": "factors would have led to a more lenient sentence under an advisory guidelines regime. However, also like Torres-Santiago, Cosme-Piri puts forth no facts that he would offer on remand to justify a more lenient sentence, save for those arguments already considered and rejected by the district court at sentencing. Although the district court was aware that it was not required to honor the 252-month sentencing recommendation stipulated to in the plea agreement, it did so nonetheless, even in the face of Cosme-Piri’s claim that he was less culpable than his co-defendants due to his shorter participation in the conspiracy. There is nothing to suggest that the district court would weigh the duration of Cosme-Piri’s participation in the conspiracy any differently under an advisory guidelines regime. C. Ortiz-Torres Pursuant to a plea agreement, Ortiz-Torres stipulated that he was responsible for at least 150 kilograms of cocaine. He also stipulated to a two-level enhancement for possession of a firearm and a two-level reduction for acceptance of responsibility. U.S.S.G. §§ 2D1.1(b)(1), 3E1.1(a) (2002). The plea agreement provided that the applicable guidelines range was between 235 and 293 months’ imprisonment. However, Ortiz-Torres’s presentence report recommended a two-level leadership role enhancement that he had not admitted to in the plea agreement, which would have resulted in a guidelines sentencing range of 292 to 365 months, well above the 252-month sentence stipulated to in the plea agreement. At sentencing, this discrepancy was brought to the attention of the district court. In order to accommodate the leadership role énhancement while still honoring the 252-month sentencing recommendation, the court recommended that the parties amend the plea agreement by reducing the drug quantity from 150 kilograms to between 50 and 150 kilograms of cocaine. The parties followed the district court’s recommendation and amended the plea agreement accordingly. Accepting the amended plea, the district court sentenced Ortiz-Torres to the 252 months to which the parties had agreed. Ortiz-Torres points to nothing in the record suggesting a reasonable probability that he would fare any better under an advisory guidelines regime. Indeed, he would be hard-pressed to make such a showing in" }, { "docid": "12735018", "title": "", "text": "repeat the facts. It is beside the point that Isabel played no role in the narcotics trafficking. The “offense” for which he was sentenced concerned only the laundering and tax reporting scheme, and in that scheme his “role” was that of a central player. U.S.S.G. § 3B1.2 (1989 and 1992). See United States v. Richardson, 925 F.2d 112, 115 (5th Cir.), cert. denied, — U.S.-, 111 S.Ct. 2868, 115 L.Ed.2d 1034 (1991). Finally, although counsel did not argue for an acceptance of responsibility reduction, any such argument had little chance of succeeding. As the district court noted, Isabel was found to have obstructed justice. For that reason, a reduction for acceptance of responsibility was highly unlikely. See U.S.S.G. § 3E1.1, application note 4 (“[cjonduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct” and adjustments under both sections should be made only in “extraordinary cases”); United States v. Aymelek, 926 F.2d 64, 69 (1st Cir.1991) (the defendant who obstructs justice “will thereby effectively forfeit a credit for acceptance of responsibility” under the guidelines); United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir.1989) (defendant’s falsehoods “militate against” a reduction for acceptance of responsibility). Isabel suggests that an adjustment in his case was nevertheless warranted under U.S.S.G. § 3E1.1, application note 2 (1992). That note says that a defendant who goes to trial instead of pleading guilty is ordinarily not accepting responsibility but, as a supposedly “rare” exception, the note cites the case of a defendant who goes to trial to challenge the legal applicability of a statute to his conduct. Isabel asserts that he did admit to his actual conduct and denied only that it constituted money laundering under the relevant statute. If so, this circumstance might avoid the effect of the not-guilty plea as a bar to the reduction, but it does nothing to remove the bar interposed by the obstruction finding. Isabel’s counsel could reasonably have concluded that so long as the obstruction finding stood, the court would refuse any reduction for acceptance of responsibility. As" }, { "docid": "8222912", "title": "", "text": "the [commentary’s] new [and less equivocal] guidance. We vacated and remanded to give the court an opportunity to consider the Sentencing Commission’s new comments.” Escobar, 866 F.3d at 337 (citations omitted). Here, the sentencing hearing took place after the Amendment had already gone into effect, and, as noted above, defense council alerted the court to the proper standard under the amended commentary. Id. 4. Bello-Sanchez also contends remand is proper because the district court failed to consider the factors listed in commentary § 3B1.2. But the district court need not weigh each § 3B1.2 factor on the record. Torres-Hernandez, 843 F.3d at 209. Alternatively, Bello-Sanchez suggests we should remand because the court failed to articulate a permissible factual basis for denying the mitigating-role adjustment. But the rule in Melton is limited to cases in which the defendant “requested that the court articulate the factual basis for the court’s finding and the reasons for refusing the reduction.” Id. Bello-Sanchez made no such request, and Melton has no application. The judgment of sentence is AFFIRMED. . U.S.S.G. § 3B1.2 cmt. n. 3(C); see also United States v. Sanchez-Villarreal, 857 F.3d 714, 722 (5th Cir. 2017) (explaining that, though a court may consider the fact that a defendant performed an essential task, it may not deny a mitigating-role adjustment solely on that basis). . See Castro, 843 F.3d at 612-13 (denying a mitigating-role reduction to a drug courier); Torres-Hernandez, 843 F.3d at 210 (same). . Torres-Hernandez, 843 F.3d at 209 (”[G]et-ting the drugs into the United States is a critical role and is not a minor role by any means.”). . In Torres-Hernandez, the government’s counterarguments concerned the defendant’s understanding of the scope and structure of the criminal activity, which is a relevant factor under § 3B1.2, cmt. n.3(C). See Torres-Hernandez, 843 F.3d at 205, 209. In the present case, by contrast, the government’s arguments focused on the fact that \"couriers are indispensable, they’re essential and instrumental.” This difference is noteworthy but ultimately immaterial, for the absence of counterarguments by one party does not show that the court failed to consider defendant’s arguments" }, { "docid": "12735017", "title": "", "text": "under section 2Sl.l(b)(2) of the guidelines or argue for a “possible reduction” of two to four points under section 3B1.2. The evidence submitted at trial showed that Isabel knew that the funds he laundered came from unlawful dealing in narcotics. United States v. Isabel, 945 F.2d at 1196, 1202. Consequently, we do not see how counsel could reasonably have argued that Isabel should not have received a three-point increase under section 2Sl.l(b)(l) (the subsection to which Isabel apparently means to refer), which requires the increase where the defendant knows the laundered funds were the proceeds of narcotics trafficking. U.S.S.G. § 2S1.1(b)(1) (1989 and 1992). Likewise, it would have made no sense for counsel to argue that Isabel was a minor or minimal participant in the conspiracy to launder drug money and file false tax returns, meriting a base offense level reduction under section 3B1.2. Isabel was a direct and essential party to that conspiracy. The recitation of evidence in our prior decision amply bears out that point, 945 F.2d at 1195-96, and we need not repeat the facts. It is beside the point that Isabel played no role in the narcotics trafficking. The “offense” for which he was sentenced concerned only the laundering and tax reporting scheme, and in that scheme his “role” was that of a central player. U.S.S.G. § 3B1.2 (1989 and 1992). See United States v. Richardson, 925 F.2d 112, 115 (5th Cir.), cert. denied, — U.S.-, 111 S.Ct. 2868, 115 L.Ed.2d 1034 (1991). Finally, although counsel did not argue for an acceptance of responsibility reduction, any such argument had little chance of succeeding. As the district court noted, Isabel was found to have obstructed justice. For that reason, a reduction for acceptance of responsibility was highly unlikely. See U.S.S.G. § 3E1.1, application note 4 (“[cjonduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct” and adjustments under both sections should be made only in “extraordinary cases”); United States v. Aymelek, 926 F.2d 64, 69 (1st Cir.1991) (the defendant who obstructs justice “will thereby effectively" }, { "docid": "1767597", "title": "", "text": "he was entitled to a four point reduction in his base offense level because of his “minimal” role in the drug offense. In guidelines appeals, we review the district court’s application of role-in-the-offense adjustments under a “clearly erroneous” standard. United States v. Osorio, 929 F.2d 753, 764 (1st Cir.1991); Valencia-Lucena, 925 F.2d at 514; United States v. Wright, 873 F.2d 437, 444 (1st Cir.1989). “And where more than one reasonable inference may be drawn from undisputed facts, the court’s choice from among supportable alternatives cannot be clearly erroneous.” United States v. Rosado-Sierra, 938 F.2d 1, 2 (1st Cir.1991) (per curiam) (citing United States v. Trinidad De La Rosa, 916 F.2d 27, 29 (1st Cir.1990)). We find no error in the court’s determination that Perez Martinez was a “minor” rather than a “minimal” participant in the conspiracy. The two-level decrease for minor participation applies to “any participant who is less culpable than most other participants, but whose role could not be described as minimal,” U.S.S.G. § 3B1.2, comment, (n. 3), whereas the “infrequently” used four-level decrease applies to “defendants who are plainly among the least culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2, comment, (nn. 1, 2). “Minimal” participation may be indicated by “the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of oth-ers____” Id. At the sentencing hearing, the district court observed: The Defendant was not a supplier, nor directly involved in the distribution of the cocaineQ Apparently, he assumed a risk in order to achieve monetary gains and his role was supportive in nature. Based on the amount of money involved that he was to collect, the purity of the cocaine and the amount of cocaine, it is the judgment of the Court that the Defendant Rafael Perez Martinez be thereby committed to the custody of the Bureau of Prisons for a term of 140 months. This assessment of Perez Martinez’ role in the offense is supported by the record. Perez Martinez argues that he should have received a more lenient sentence than Pantoja," }, { "docid": "23397416", "title": "", "text": "the denial of minor participant status. Second, Nevarez-Arreola complains that the district court erred by refusing a two-level downward adjustment for acceptance of responsibility under guideline section 3E1.1. He points out that he did not attempt to escape arrest and that he pleaded guilty to the count on which he was sentenced. He explains his failure to give the arresting agents and the probation officer a more detailed explanation of the crime by claiming that as a minimal participant he was unable to relate a clearer account of his and Morales-Torres’ activities. III. Our role in reviewing sentences made under the guidelines is confined to determining whether a sentence was “imposed in violation of law” or “as a result of an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742(e). We must affirm guideline applications based on factual findings that are not clearly erroneous, United States v. Mejia-Orosco, 867 F.2d 216, 221, clarified on petition for reh’g, 868 F.2d 807 (5th Cir.) cert. denied, — U.S. -, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989), including applications based on findings concerning a defendant’s degree of participation in criminal activity under guideline section 3B1. See id.; United States v. Hewin, 877 F.2d 3, 4 (5th Cir.1989). The sentencing court must reduce the defendant’s offense level by four if it finds the defendant to have been a minimal participant in the crime. Guideline § 3B1.2(a). Section 3B1.2(a) applies to defendants who “are plainly among the least culpable” of those involved in the criminal activity. Application Note 1 to § 3B1.2(a). The defendant’s lack of understanding of the enterprise’s scope and structure and of the activities of others are indicative of the role of minimal participant. Id. Application of section 3B1.2(a) is appropriate, for example, to “someone who played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment” or “was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” Application Note 2 to § 3B1.2(a). The section is designed to be applied infrequently, as many offenses are" }, { "docid": "16549219", "title": "", "text": "being paid $100 for his role in the deal. Mr. Torres pleaded guilty to one count of conspiracy to distribute 500 grams or more of cocaine in violation 21 U.S.C. §§ 846 and 841(b)(1)(B) and two counts of distribution of a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Pursuant to United States Sentencing Guidelines (U.S.S.G) § 2Dl.l(b)(l), the district court imposed a two-level enhancement for possession of a dangerous weapon, finding Mr. Torres constructively possessed the gun during the first controlled purchase. With the enhancement, the district court correctly calculated Mr. Torres’s sentence at level 25, Criminal History Category V, resulting in a range of 100-125 months of imprisonment. The district court imposed a 120-month sentence, the minimum prison sentence Mr. Torres, as a repeat drug felon, was required to receive under 21 U.S.C. § 841(b)(1)(B). Thus, as a practical matter, the enhancement was without effect on the term of his sentence. On appeal, Mr. Torres concedes he would have received the same prison sentence without' the enhancement. He nevertheless challenges the enhancement, arguing that, under the BOP’s current regulations, he will be ineligible for early release should he be admitted to and complete the BOP’s drug-treatment program. The government urges us to decline review of this case because Mr. Torres will receive the same sentence regardless of the decision we may reach on the merits of his claim. In the alternative, the government contends the district court properly assessed the enhancement. Reviewing the merits, we affirm. II This court has consistently declined review of a sentencing decision where the defendant would receive the same sentence if the decision were reversed. See United States v. Mayer, 130 F.3d 338, 339 (8th Cir.1997); United States v. Baker, 64 F.3d 439, 441 (8th Cir.1995); United States v. Simpkins, 953 F.2d 443, 446 (8th Cir.1992). The government argues we should likewise decline review of this case because Mr. Torres will receive the same 120-month sentence with or without the enhancement. In this appeal, however, Mr. Torres does not wish to vindicate a legal right to receive a shorter sentence" }, { "docid": "5496265", "title": "", "text": "first address the stipulation of the parties. Mr. Arredondo-Santos correctly makes no argument to this court that the stipulation was binding upon the district court. Mr. Arredondo-Santos contends that the sentence was imposed as a result of an incorrect application of the Sentencing Guidelines. We must accept the findings of fact of the district court unless they are clearly erroneous. 18 U.S.C. § 3742(d)(2). A finding that a defendant is or is not a minor participant is a finding of fact. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989) (citing United States v. Franco-Torres, 869 F.2d 797, 800 (5th Cir.1989)). We give due deference to the district court’s application of the Sentencing Guidelines to the facts. 18 U.S.C. § 3742(e); United States v. Smith, 888 F.2d 720, 723 (10th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1786, 108 L.Ed.2d 788 (1990). The facts are undisputed. Mr. Arredondo-Santos was apprehended with a quantity of marijuana concealed in his van. Mr. Arredondo-Santos had obtained the marijuana in Mexico and was attempting to transport it to California. We will accept Mr. Arredondo-Santos’ contention that he was a courier. Couriers are indispensable to any drug-dealing network. Section 3B1.2(b) of the Sentencing Guidelines provides for a two-level decrease in the offense level if the defendant was a “minor participant in any criminal activity.” The commentary defines a minor participant as “any participant who is less culpable than most other participants, but whose role could not be described as minimal.” Commentary, Application Note 3. It is obvious that the decision to utilize this downward adjustment is heavily dependent upon the facts. See § 3B1.2 commentary (background). For this reason, this court will adopt no per se rule allowing a downward adjustment due solely to the fact that the defendant was a courier of illegal drugs. For cases reaching similar conclusions, see Sanchez-Lopez, 879 F.2d at 557-58; United States v. Daughtrey, 874 F.2d 213, 218-19 (4th Cir.1989); United States v. Wright, 873 F.2d 437, 442-43 (1st Cir.1989); United States v. Nunley, 873 F.2d 182, 186-87 (8th Cir.1989); United States v. Gallegos, 868 F.2d 711," }, { "docid": "11285526", "title": "", "text": "had some knowledge of the drug trafficking organization and how it worked. The prosecutor also argued that Torres-Hernandez’s violation of the law was flagrant and warranted a sentence at the top of the advisory sentencing range. After hearing these arguments, the’district court declined to grant a minor role adjustment and sentenced Torres-Hernandez to 57 months of imprisonment for the possession-with-intent-to-distribute offense. Torres-Hernandez was also in violation of his term of supervised release imposed for his prior drug trafficking offense, and the district court sentenced him to 18 months of imprisonment consecutive to the 57 months’ sentence. Torres-Hernandez appeals his 57 months’ sentence. The sentence for the violation of supervised release imposed in the prior judgment of conviction is not at issue in this appeal. II Torres-Hernandez contends’ that Amendment 794 materially changed the factors that a sentencing court should consider in deciding whether to apply a mitigating role adjustment under § 3B1.2. He asserts that the district court misapplied the law in assessing whether he should have recéived a minor role adjustment. Section 3B1.2 of the Sentencing Guidelines instructs sentencing courts to decrease a defendant’s offense level by four levels “[i]f the defendant was a minimal participant in any criminal activity,” two levels “[i]f the defendant was a minor participant in any criminal activity,” and three levels if the defendant’s level of participation fell between minimal and minor. The commentary to § 3B1.2 provides that a mitigating role adjustment is available to any defendant “who plays a part in committing the offense that makes him substantially less culpable than the average participant.” Amendment 794 left the text of § 3B1.2 unchanged but made various revisions to the commentary. The Commission provided various reasons for the amendment. The Commission first explained that the amendment was a result of a study that, overall, found the mitigating role provision in the Guidelines “is applied inconsistently and more sparingly than the Commission intended.” The Commission then explained that “[i]n drug cases, the Commission’s study confirmed that mitigating role is applied inconsistently to drug defendants who performed similar low-level functions (and that rates of application" } ]

[ { "docid": "8583393", "title": "", "text": "is corroborated evidence to the effect that, on these occasions, the ex-factory contract price went directly to Mitsu-waya who, after making payment for fabrication costs, reaped the benefits or bore the burdens of the overall bargain. Such calculations of, and speculations in, the contract price are not actions commensurate with the existence of a buyer/agent relationship. Under a section dealing with the essential characteristics of agency relations, the Eestatement of the Law of Agency (Eestatement, Second, Agency § 13), comments thus: a. Existence and effect of -fiduciary duties. The agreement to act on behalf of the principal causes the agent to be a fiduciary, that is, a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking. Among the agent’s fiduciary duties to the principal is the duty to account for profits arising out of the employment, the duty not to act as, or on account of, an adverse party without the principal’s consent, the duty not to compete toith the principal on his own account. * * * [Emphasis added.] Since no written agency agreement was produced and, more especially, since neither Morris nor Mitsuwaya relied on it in their dealings but preferred working with verbal understandings, only an agency by factual relation could possibly be shown. In such case, even though the principal intends to hire another as an agent and believes that the other agrees, nevertheless, circumstances may appear to indicate that the other does not so intend. Eestatement, Second, Agency, section 15. What emerges as apparent from the evidence in this case is that, on the occasions referred to above, Mitsuwaya ceased to function as the agent of the plaintiff and participated in the negotiations as prime contractor for the sale of this merchandise. In estimating costs entering into the ex-factory prices, it acted as an adverse party vis-a-vis its alleged principal, and by retaining the fruits of the bargain (less certain known fabrication charges) upon delivery of the finished goods, it assumed not only the risks of profit or loss but also the" } ]

[ { "docid": "8583392", "title": "", "text": "anticipate the total ex-factory amounts. Sellers are the ones ordinarily clothed with the responsibility for computing all the costs in arriving at final prices for the sale of merchandise. United States v. Erb & Gray Scientific, Inc., 54 Cust. Ct. 791, A.R.D. 186, affirmed, April 7, 1966, Erb & Gray Scientific, Inc. v. United States, 53 CCPA 46, C.A.D. 875. Plaintiff has sought to argue that the Mitsuwaya company, without interfering with its agency status, was free to enter into separate agreements with the makers to sell them the materials they needed. However, there is nothing before me to show that separate Contracts were negotiated between the makers and Mitsuwaya but rather, quite the contrary, Mitsuwaya’s records show no such agreements running between these parties. Moreover, it is stated in both the affidavits and the Treasury report that Mitsuwaya supplied materials for fabrication and not that it sold them, and further, the report indicates that the makers would not be bound on so-called long-term contracts if they were tobe responsible for the materials. Furthermore, there is corroborated evidence to the effect that, on these occasions, the ex-factory contract price went directly to Mitsu-waya who, after making payment for fabrication costs, reaped the benefits or bore the burdens of the overall bargain. Such calculations of, and speculations in, the contract price are not actions commensurate with the existence of a buyer/agent relationship. Under a section dealing with the essential characteristics of agency relations, the Eestatement of the Law of Agency (Eestatement, Second, Agency § 13), comments thus: a. Existence and effect of -fiduciary duties. The agreement to act on behalf of the principal causes the agent to be a fiduciary, that is, a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking. Among the agent’s fiduciary duties to the principal is the duty to account for profits arising out of the employment, the duty not to act as, or on account of, an adverse party without the principal’s consent, the duty not to compete toith the principal on" }, { "docid": "10423334", "title": "", "text": "the facts reflected in the summary judgment record, the conclusion is inescapable that the attorneys purchased the copies for their clients and that the clients are the direct purchasers. A. In Pennsylvania, the elements of agency are “the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.” Scott v. Purcell, 490 Pa. 109, 415 A2d 56, 60 (1980) (quoting Restatement (Second) of Agency § 1, Comment b (1958)). When a lawyer undertakes to represent .a client, he consents to the client’s having control of the representation even though he may be expected to exercise professional judgment with respect to the means of pursuing the objectives of the representation. Pennsylvania Rules of Professional Conduct 1.2(a). For this reason, the attorney-client relationship, as the court acknowledges, is generally regarded as an agency relationship. As a principal, the client is bound by the actions of the attorney in the course of the representation. As an agent, the attorney, like other agents, is a fiduciary and owes to his client-principal a duty of care, obedience, and loyalty. Restatement (Second) of Agency §§ 377-398; e.g., Pennsylvania Rules of Professional Conduct 1.1, 1.2, 1.3, 1.15. In particular, an attorney who obtains tangible property in the course of carrying out the agency owes to his client-principal a duty to exercise reasonable care in its protection, to use it only in accordance with the directions of the principal and for his benefit, and to surrender it upon demand on the termination of the agency. Restatement (Second) of Agency § 422; Pennsylvania Rules of Professional Conduct 1.15,1.16(d). While the attorney may have a lien to secure any unpaid compensation, it is only a lien and any tangible property obtained or created in the course of the representation belongs to the client-principal. Pennsylvania Rules of Professional Conduct 1.16(d). The record here reflects typical attorney-client relationships between the plaintiffs and their attorneys. The attorneys agreed to represent the plaintiffs in their personal injury suits and thus" }, { "docid": "14136902", "title": "", "text": "Arts case, the court indicated that it might be that an agent who worked for a seller could be a bona fide buying agent of another, it stated that it would have to appear that the principal consented to the conflict of interest. In the case before us, the importer may have known that there was some common ownership of Oriental Trading and Toyo Jitsugyo, but it was not aware that the two were in fact a single company, and did not consent to the participation of Oriental Trading under the circumstances. Although Toyo Jitsugyo through Oriental Trading might properly serve as a buying agent of Bushnell in dealing with other sellers, it could not do so in regard to its own merchandise, where it was in effect dealing with itself, unless Bushnell had consented. Unless otherwise agreed, an agent is subject to a duty not to deal with, his principal as an adverse party nor to act on behalf of an adverse party in a transaction connected with his agency. Restatement of the Law of Agency, Second, sections 13, 389, 391. The authority to act as an agent ordinarily includes only authority to act for the benefit of the principal. Ibid., section 39. Moreover: Where * * * the agent is carrying out the purposes of the general employer, the fact that the agreement between the agent and an alleged second employer specifies that he is to be the agent of the second employer, does not necessarily have that effect. If it is found that he is the agent of one for the transaction or a part of it, the normal rights and liabilities of a principal accrue to that one. [Ibid., section 14 L.] Accordingly, we find that as to the merchandise purchased from Toyo Jitsugyo, no agency relationship existed between Bushnell and Oriental Trading and there was no basis for “commissions” or “inspection fees.” Appellant relies upon Kurt Orban Company, Inc. v. United States, 52 CCPA 20, C.A.D. 851 (1965), and United States v. Tapetes Luxor S.A. et al., 54 CCPA 116, C.A.D. 921 (1967). In the" }, { "docid": "14922280", "title": "", "text": "merchandise directly from the manufacturer; (3) New Trends bought only F.O.B. from the buying agent; (4) New Trends did not participate in negotiations, and the agent conducted all negotiations with the factories while New Trends dealt only with the agent; (5) New Trends did not know if the manufacturers were aware that New Trends was the actual purchaser; and (6) New Trends did not know how much the agent paid the manufacturers for the merchandise. Mr. Parker attempted to refute this document, and testified that the employee who prepared it had no authority to answer Customs’ request for information. Defendant, however, introduced a letter which indicated that, at the time, the employee was the Import Manager for New Trends. Mr. Parker denied that the employee had ever held the position of Import Manager for New Trends. Defendant introduced into evidence documentary exhibits consisting of the purported agents’ letterheads, commercial invoices, and customs’ invoices in which the agents designated themselves as \"sellers” and \"manufacturers.” Mr. Parker suggested that the designation was a misnomer because these specific agents were financially incapable of functioning as selling companies. He added that it was the custom of Far Eastern business persons to characterize themselves as sellers. Plaintiff contends that the evidence adduced at trial confirms the principal-agency relationship exhibited in the buying agency agreement. Plaintiff asserts that New Trends exerted the degree of control over its overseas agents necessary to establish an agency relationship. Plaintiff also maintains that the record establishes that the commissions paid to the agents inured solely to the benefit of New Trends and not to the manufacturers. It is the determination of the Court that plaintiffs evidence is not sufficient to support its contention that a bona fide principal-agency relationship existed between New Trends and its overseas agents. It is fundamental that a buying commission paid to a bona fide agent of the importer is not a proper element of dutiable value. See United States v. Nelson Bead Co., 42 CCPA 175, 183, C.A.D. 590 (1955); J.C. Penney Purchasing Corp. v. United States, 80 Cust. Ct. 84, 95, C.D. 4741, 451" }, { "docid": "1997780", "title": "", "text": "commission is dependent on the facts in each particular case. United States v. Bauer et al., 3 Ct. Cust. Appls. 343, T.D. 32627. Judicial authorities are consistent to the effect that a charge for services associated with the purchase of merchandise in the foreign market, and which is not an amount that inures to the benefit of the seller, is a buying commission, which, although affecting the cost of goods to the importer, is not part of the market value of the merchandise, and, hence is a nondutiable item. United States v. Case & Co., Inc., 13 Ct. Cust. Appls. 122, T.D. 40958; United States v. Alfred Kohlberg, Inc., 27 C.C.P.A. (Customs) 223, C.A.D. 88; Stein v. United States, 1 Ct. Cust. Appls. 36, T.D. 31007, * * * It has been held that the bona fides of a commission may well be questioned when the so-called commissionaire and the manufacturer are under common control of members of the same family, or where the plaintiff and the alleged buying agent are under such common control. Fine Arts Bag Co v. United States, 57 Cust. Ct. 625, R.D. 11224 (1966); A & A Trading Corp. v. United States, 62 Cust. Ct. 782, R.D. 11619 (1969). However, common control per se of the importer and commissionaire does not preclude a finding of a bona fide principal-buying agent relationship, since control of the agent by the principal is the sine qua non of the agency relationship. In Dorf International, Inc., et al. v. United States, 61 Cust. Ct. 604, A.R.D. 245 (1968), the court pointed out: * * * It is of course basic that the decisive consideration which distinguishes a principal-agent relationship from a buyer-seller relationship is the right of the principal to control the conduct of the agent with respect to matters entrusted to him. E.g. Smith v. Cities Service Oil Co., 346 F. 2d 349, 352 (7th Cir. 1965); Wasilowski v. Park Bridge Corp., 156 F. 2d 612 (2nd Cir. 1946); Esmond Mills v. C.I.R., 132 F. 2d 753, 755 (1st Cir. 1943), cert. denied 319 U.S. 770. * *" }, { "docid": "1997336", "title": "", "text": "by Choueke, which questions, though not fully expanded, I consider the most worthy of discussion and elucidation. It appears that Choueke supplied the material to the manufacturer and on the three orders involved herein, the manufacturer deposed that he received payment for a sum less than the sale price to Shalom. Here we begin to to|uch on a practice which can, in certain situations, be destructive of the principal-agent relationship and can begin to place the agent in the role of seller in his own right. In the recent case of Paul Morris v. United States, 57 Cust. Ct. 585, R.D. 11207, Judge Oliver, in a thorough and well-reasoned opinion which deserves close scrutiny, found that a principal-agent relationship had been destroyed on those occasions when the agent supplied basic materials to the manufacturer and in the existing situation transferred to himself such seller’s attributes as subjection to fluctuating profits or losses. As a conseqluence of his undisclosed involvement in the supply of materials, the agent in Paul Morris assumed an interest adverse to that of his principal. The principal would be interested in minimizing the estimate of cost of materials in the negotiations leading to the fixing of a contract price, while his agent, hopeful of obtaining supplies at a low price, might be thought to desire a large estimate of supply cost thus obtaining for ’himself the difference between estimated and actual cost. Such actions clearly breached the agency agreement. The present fact situation, however, differs in one all-important respect; the supplying of materials herein was done with the full knowledge and consent of the principal and the agent stood to gain no profit or bear no loss in connection with such supply. This fact is clearly indicated by the testimony of plaintiff’s witness. The procedure herein is consistent with the existence of a buying agency, in fact, in light of the lousiness exigencies involved, it was essential to the task of obtaining the merchandise for Shalom. Only by securing the material at one time for the manufacturer could Shalom and Choueke be protected against rising material prices" }, { "docid": "16925730", "title": "", "text": "adverse to their own; and (3) Charles Evans was a dual agent whose actions may not be imputed either to them or BOF since his actions were adverse to both. (Title Cos. Brief at 28-30). 1. Whether an Agency Relationship Existed Between Charles Evans and the Title Companies In Mississippi, the principal-agent relationship is defined as “the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” O.W.O. Invs., Inc. v. Stone Inv. Co., 32 So.3d 439, 447 (Miss. 2010) (internal quotation marks omitted). An agent may bind his principal through actual or apparent authority. Barnes, Broom, Dallas & McLeod, PLLC v. Estate of Cappaert, 991 So.2d 1209, 1211 (Miss. 2008). Actual authority exists when the principal expressly authorizes the agent in either written or oral specific terms to act on its behalf. Migerobe, Inc. v. Certina USA, Inc., 924 F.2d 1330, 1336 (5th Cir.1991) (applying Mississippi law). Apparent authority exists when a reasonably prudent person having knowledge of the business involved, would be justified in supposing, based on the character of the duties that the principal entrusted to the agent, that the agent has the power he is assumed to have. Barnes, 991 So.2d at 1211. “The burden of proving an agency relationship rests squarely upon the party asserting it.” Highlands Ins. Co. v. McLaughlin, 387 So.2d 118, 120 (Miss.1980). Whether an agency relationship exists depends upon whether the parties intended to create an agency relationship, a factual issue that may be proved by either direct or circumstantial evidence. Engle Acoustic & Tile, Inc. v. Grenfell, 223 So.2d 613, 617 (Miss.1969). Once established, an agency relationship generally imputes knowledge and information of an agent received in conducting the principal’s business to the principal, regardless of whether the agent communicated that knowledge or information to the principal. Lane v. Oustalet, 873 So.2d 92, 95-96 (Miss.2004). It is worth noting that an agency relationship may subject the principal to liability, even though the agent’s conduct was" }, { "docid": "14136899", "title": "", "text": "et al., 26 CCPA 349, C.A.D. 39 (1939). Where the commissionaire and the manufacturer (both partnerships) were under common control of members of the same family and part of any commission would inure to the partners of the manufacturer, it was held that the buying agency was not bona fide, and the so-called commission was properly a part of dutiable value. Fine Arts Bag Co. v. United States, supra. See also Paul Morris v. United States, 57 Cust. Ct. 585, R.D. 11207 (1966), application for review dismissed 58 Cust. Ct. 821, A.R.D. 221 (1967), holding that the agency was not bona fide, where at times the commissionaire supplied the basic materials for fabrication and the ex-factory price went to it, and where, after making payment for fabrication costs, it retained the profit or suffered the loss. In Park Avenue Imports v. United States, 62 Cust. Ct. 1035, A.R.D. 255, 299 F. Supp. 528 (1969), the court held that common control oí tlie importer and the commissionaire did not preclude a finding of a Iona fide buying agent relationship, hut that if the commissionaire was in fact a seller or an agent of the seller, the commission would not be a tona fide buying commission. It held that the mere showing of the agent’s stock interest in the manufacturer was of no significance since there was nothing to indicate any privity between the two or that any of the commissions inured to the benefit of the sellers. In the instant case, since the alleged buying agent (Oriental' Trading Co., Ltd.) was the export division of the seller (Toyo Jitsugyo KK) there is no doubt that there was privity between them and that the commissions inured to the benefit of the seller, even though the factory division and the export division kept separate financial records and did not control each other’s activities. In B & W Wholesale Co., Inc. v. United States, supra, it appeared that the importer placed orders with M. Matsumoto & Co., Ltd., in Japan, which allocated corresponding orders to factories in Japan. The importer had no control over" }, { "docid": "18813098", "title": "", "text": "hiring, promotion, discharge and work of all operating and service employees performing services in or about the property. The Agreement further provided, and the evidence showed, that all employees shall be on the payroll of Quality Management Company. The named defendants contend, based on Quality Management’s exclusive control of the premises, that if any negligence in supervision does exist, it should be attributed to Quality Management and not to the named defendants. The. plaintiff argues, inter alia, that Quality Management is merely an agent of Hotel Investments, and, therefore, any negligent supervision on the part of Quality Management would be imputed to Hotel Investments as principal. The term “agency” has been defined as a fiduciary relationship by which a party confides to another the management of some business to be transacted in the former’s name or on his account, and by which such other assumes to do the business and render an account of it. 3 AM.JUR.2d Agency § 1 (1962). The American Law Institute states that agency is the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. RESTATEMENT (SECOND) OF AGENCY § 1 (1957). Before an agency relationship can exist, the principal must intend that the agent shall act for him, and the agent must intend to accept the authority and act on it, and the intention of the parties must find expression either in words or conduct between them. 3 AM.JUR.2d Agency § 17 (1962). The cornerstone of an agency relationship is the power of the principal to control the conduct of his agent. Sharpe v. Bradley Lumber Co., 446 F.2d 152 (4th Cir.1971); Burriss v. Texaco, Inc., 361 F.2d 169 (4th Cir.1966); Vance Trucking Co. v. Canal Ins. Co., 249 F.Supp. 33 (D.S.C.1966). Although the Agreement between Hotel Investments and Quality Management terminated on the 28th day of February 1979, and was not renewed thereafter, this court looks to the Agreement to determine the proper relationship between the two entities." }, { "docid": "1233098", "title": "", "text": "commissionaire and the manufacturer (both partnerships) were under common control of members of the same family and part of any commission would inure to the partners of the manufacturer, it was held that the buying agency was not bona fide, and the so-called commission was properly a part of dutiable value. Fine Arts Bag Co. v. United States, supra. See also Paul Morris v. United States, 57 Cust.Ct. 585, R.D. 11207 (1966), application for review dismissed 58 Cust.Ct. 821, A.R.D. 221 (1967), holding that the agency was not bona fide, where at times the commissionaire supplied the basic materials for fabrication and the ex-factory price went to it, and where, after making payment for fabrication costs, it retained the profit or suffered the loss. In Park Avenue Imports v. United States, 62 Cust.Ct. 1035, A.R.D. 255, 299 F.Supp. 528 (1969), the court held that common control of the importer and the commissionaire did not preclude a finding of a bona fide buying agent relationship, but that if the commissionaire was in fact a seller or an agent of the seller, the commission would not be a bona fide buying commission. It held that the mere showing of the agent’s stock interest in the manufacturer was of no significance since there was nothing to indicate any privity between the two or that any of the commissions inured to the benefit of the sellers. In the instant case, since the alleged buying agent (Oriental Trading Co., Ltd.) was the export division of the seller (Toyo Jitsugyo KK) there is no doubt that there was privity between them and that the commissions inured to the benefit of the seller, even though the factory division and the export division kept separate financial records and did not control each other’s activities. In B & W Wholesale Co., Inc. v. United States, supra, it appeared that the importer placed orders with M. Matsumoto & Co., Ltd., in Japan, which allocated corresponding orders to factories in Japan. The importer had no control over the choice of factories, did not receive substantiation of the inland freight charges and" }, { "docid": "1233101", "title": "", "text": "an agent who worked for a seller could be a bona fide buying agent of another, it stated that it would have to appear that the principal consented to the conflict of interest. In the case before us, the importer may have known that there was some common ownership of Oriental Trading and Toyo Jitsugyo, but it was not aware that the two were in fact a single company, and did not consent to the participation of Oriental Trading under the circumstances. Although Toyo Jitsugyo through Oriental Trading might properly serve as a buying agent of Bushnell in dealing with other sellers, it could not do so in regard to its own merchandise, where it was in effect dealing with itself, unless Bushnell had con sented. Unless otherwise agreed, an agent is subject to a duty not to deal with his principal as an adverse party nor to act on behalf of an adverse party in a transaction connected with his agency. Restatement of the Law of Agency, Second, sections 13, 389, 391. The authority to act as an agent ordinarily includes only authority to act for the benefit of the principal. Ibid., section 39. Moreover: Where * * * the agent is carrying out the purposes of the general employer, the fact that the agreement between the agent and an alleged second employer specifies that he is to be the agent of the second employer, does not necessarily have that effect. If it is found that he is the agent of one for the transaction or a part of it, the normal rights and liabilities of a principal accrue to that one. [Ibid., section 14 L.] Accordingly, we find that as to the merchandise purchased from Toyo Jitsugyo, no agency relationship existed between Bushnell and Oriental Trading and there was no basis for “commissions” or “inspection fees.” Appellant relies upon Kurt Orban Company, Inc. v. United States, 52 CCPA 20, C.A.D. 851 (1965) and United States v. Tapetes Luxor S. A. et al., 54 CCPA 116, C.A.D. 921 (1967). In the Kurt Orban case, an organization known as SAPET" }, { "docid": "22008806", "title": "", "text": "“control” Andromeda in any way at the time of the sale. There also is no question that he was not an “aider and abettor” or “coconspirator;” to be so held liable, Plaintiff would have to establish that Defendant had knowledge of a fraudulent scheme or acted so recklessly that knowledge may be imputed to him. Stern v. American Bankshares Corp., 429 F.Supp. 818, 826 (E.D.Wis.1977). There is no evidence before this Court that Sowers knew of a “fraudulent scheme,” or even that a “fraudulent scheme” existed, with respect to the sale of Andromeda stock. Thus, the issue is whether Defendant acted as the Plaintiff’s agent, or as Andromeda’s agent, or both, in connection with the April 13, 1974 transaction. The basic principles viz. existence of a principal-agent relationship are as follows: “Agency is ordinarily a relation created by agreement of the parties, and, as between principal and agent, an agency is created and authority is actually conferred very much as a contract is made, to the extent that the creation results from the agreement between the principal and agent that such a relation shall exist. As between the parties to the relation, there must be a meeting of the minds in establishing the agency, and the consent of both the principal and the agent is necessary to create the agency, although such consent may be implied rather than expressed. The principal must intend that the agent shall act for him, the agent must intend to accept the authority and act on it, and the intention of the parties must find expression either in words or conduct between them.” 3 Am.Jur.2d “Agency,” § 17 at p. 428. Based on the evidence before the Court, I conclude that Sowers acted as Plaintiff’s agent in obtaining the available information about Andromeda and advising her in that regard; this appears to have been the intent of the parties, given their long-standing “advisor-advisee” relationship. The evidence is inconclusive, at best, vis-a-vis an agency relationship between Andromeda (Wardy) and Sowers. It seems most likely that Defendant procured the investors as a favor to Wardy; he was" }, { "docid": "1997781", "title": "", "text": "Fine Arts Bag Co v. United States, 57 Cust. Ct. 625, R.D. 11224 (1966); A & A Trading Corp. v. United States, 62 Cust. Ct. 782, R.D. 11619 (1969). However, common control per se of the importer and commissionaire does not preclude a finding of a bona fide principal-buying agent relationship, since control of the agent by the principal is the sine qua non of the agency relationship. In Dorf International, Inc., et al. v. United States, 61 Cust. Ct. 604, A.R.D. 245 (1968), the court pointed out: * * * It is of course basic that the decisive consideration which distinguishes a principal-agent relationship from a buyer-seller relationship is the right of the principal to control the conduct of the agent with respect to matters entrusted to him. E.g. Smith v. Cities Service Oil Co., 346 F. 2d 349, 352 (7th Cir. 1965); Wasilowski v. Park Bridge Corp., 156 F. 2d 612 (2nd Cir. 1946); Esmond Mills v. C.I.R., 132 F. 2d 753, 755 (1st Cir. 1943), cert. denied 319 U.S. 770. * * * We quite agree with the following statement in appellant’s brief, page 12, that: * * * It might even be said as a general proposition that the closer the relationship or the greater the extent of the “common control” between an exporter and an importer, for example an exporter-employee and an importer-employer, the less likelihood that the exporter is either the seller or an agent of the seller or that the exporter’s remuneration inures to the benefit of the seller or constitutes a part of the purchase price. If the record had shown that through appellant’s control of Cohen Sons, the mere appearance or indicia of a buying agency relationship was created solely as a ruse to affect customs valuation, and Cohen Sons was in fact a seller or an agent of the sellers, there would, of course, be a finding that no b ona -fide buying commissions were included in the appraised values. The record establishes, however, that the services specified in the buying agency agreement were performed by Cohen Sons; that a" }, { "docid": "22785380", "title": "", "text": "United States v. Supreme Merchandise Company, 48 Cust. Ct. 714, A.R.D. 145. It seems pertinent further to observe that the testimony of the witness Sutton sets forth more than his conclusions concerning the relationship between his company and Swedish Trading. It is a detailed description of the services rendered by Swedish Trading and the respective roles played by that firm and his own in the conduct of negotiations leading to the eventual purchase of the merchandise here involved, from which the court is able to determine the status of the parties. Whether or not a buying commission is bona fide depends upon the facts in each case, Haddad & Sons, Inc. v. United States, 53 Cust. Ct. 423, Reap. Dec. 10825. That a bona fide principal-agent relationship existed between these two companies and that Swedish Trading never was an independent purchaser is the clear purport of the testimony. It is also reasonably deducible from other evidence of record. The fact that Swedish Trading assumed no liability for damage or loss to the merchandise, whereas the manufacturers in each instance ac knowledged that responsibility, is strongly indicative of an agency relationship. In the normal course of events, it is the seller of merchandise, not a mere agent, who is expected to stand behind his product when claims are made for defects in production or shipment. Furthermore, not only do the contracts with the manufacturers recite that purchases are made for the account of Lollytogs, Ltd., of New York, but the contract with the manufacturer was not negotiated until terms were set by Lollytogs. The absolute identity of those terms in the reciprocal contracts with the manufacturers in the so-called back-to-back arrangements makes it apparent that Swedish Trading was acting in the capacity of an agent in the transactions between plaintiff and the foreign manufacturers. It has long been settled law that a tona fide buying commission, one which inures to the benefit of the purchaser, not the seller, is no part of the value of imported merchandise. Stein v. United States, 1 Ct. Cust. Appls. 36, T.D. 31007; United States v." }, { "docid": "1233100", "title": "", "text": "did not control the mode by which the goods were shipped. It did not take possession of the goods until they were on board ship in Kobe. The court held on these facts that an agency relationship did not exist between Matsumoto and the importer and that there was no basis for a “commission.” In the instant case the agreement of March 13, 1960 between Bushnell and Oriental Trading states that Oriental Trading is to handle purchasing details of merchandise “from the various factories * * * you deem * * * appropriate under the circumstances.” [Emphasis added.] This leaves the selection of the manufacturers to Oriental Trading. In view of this and the fact that Oriental Trading is a division of Toyo Jitsugyo KK, it is difficult to believe that Oriental Trading would find appropriate any manufacturer other than Toyo Jitsugyo as to any product it offered. Cf. Fine Arts Bag Co. v. United States, supra, 57 Cust.Ct. p. 634. While in the Fine Arts case, the court indicated that it might be that an agent who worked for a seller could be a bona fide buying agent of another, it stated that it would have to appear that the principal consented to the conflict of interest. In the case before us, the importer may have known that there was some common ownership of Oriental Trading and Toyo Jitsugyo, but it was not aware that the two were in fact a single company, and did not consent to the participation of Oriental Trading under the circumstances. Although Toyo Jitsugyo through Oriental Trading might properly serve as a buying agent of Bushnell in dealing with other sellers, it could not do so in regard to its own merchandise, where it was in effect dealing with itself, unless Bushnell had con sented. Unless otherwise agreed, an agent is subject to a duty not to deal with his principal as an adverse party nor to act on behalf of an adverse party in a transaction connected with his agency. Restatement of the Law of Agency, Second, sections 13, 389, 391. The authority" }, { "docid": "14136898", "title": "", "text": "United States, 55 Cust. Ct. 608, Reap. Dec. 11073 (1965); Reliance International Corp. v. United States, 62 Cust. Ct. 845, R.D. 11639, 305 F. Supp. 20 (1969); Carolina Mfg. Co. v. United States, 62 Cust. Ct. 850, R.D. 11640 (1969); Chadwick-Miller Importers, Inc., et al. v. United States, 66 Cust. Ct. 573, R.D. 11743 (1971). However, where the relationship between the parties is that of buyer and seller rather than principal and agent, air item claimed to be a “buying commission” is not deductible. B & W Wholesale Co., Inc. v. United States, 58 CCPA 92, C.A.D. 1010 (1971); Morris Friedman v. United States, 52 Cust. Ct. 660, A.R.D. 178 (1964); Pan Pacific Importers, Ltd. v. United States, 10 Cust. Ct. 530, Reap. Dec. 5804 (1943); Samuel S. Perry v. United States, 24 Cust. Ct. 546, Reap. Dec. 7794 (1950); Fine Arts Bag Co. v. United States, 57 Cust. Ct. 625, R.D. 11224 (1966). Profit, as distinguished from a purchasing commission, is an essential element of export value. United States v. S. S. Kresge Co., et al., 26 CCPA 349, C.A.D. 39 (1939). Where the commissionaire and the manufacturer (both partnerships) were under common control of members of the same family and part of any commission would inure to the partners of the manufacturer, it was held that the buying agency was not bona fide, and the so-called commission was properly a part of dutiable value. Fine Arts Bag Co. v. United States, supra. See also Paul Morris v. United States, 57 Cust. Ct. 585, R.D. 11207 (1966), application for review dismissed 58 Cust. Ct. 821, A.R.D. 221 (1967), holding that the agency was not bona fide, where at times the commissionaire supplied the basic materials for fabrication and the ex-factory price went to it, and where, after making payment for fabrication costs, it retained the profit or suffered the loss. In Park Avenue Imports v. United States, 62 Cust. Ct. 1035, A.R.D. 255, 299 F. Supp. 528 (1969), the court held that common control oí tlie importer and the commissionaire did not preclude a finding of a Iona fide" }, { "docid": "1233097", "title": "", "text": "United States, 55 Cust.Ct. 608, Reap.Dec. 11073 (1965); Reliance International Corp. v. United States, 62 Cust.Ct. 845, R.D. 11639, 305 F.Supp. 20 (1969); Carolina Mfg. Co. v. United States, 62 Cust.Ct. 850, R.D. 11640 (1969); Chadwick-Miller Importers, Inc., et al. v. United States, 66 Cust.Ct., R.D. 11743 (1971). However, where the relationship between the parties is that of buyer and seller rather than principal and agent, an item claimed to be a “buying commission” is not deductible. B & W Wholesale Co., Inc. v. United States, 436 F.2d 1399, 58 CCPA 92, C.A.D. 1010 (1971); Morris Friedman v. United States, 52 Cust.Ct. 660, A.R.D. 178 (1964); Pan Pacific Importers, Ltd. v. United States, 10 Cust.Ct. 530, Reap.Dec. 5804 (1943); Samuel S. Perry v. United States, 24 Cust.Ct. 546, Reap.Dec. 7794 (1950); Fine Arts Bag Co. v. United States, 57 Cust.Ct. 625, R.D. 11224 (1966). Profit, as distinguished from a purchasing commission, is an essential element of export value. United States v. S. S. Kresge Co., et al., 26 CCPA 349, C.A.D. 39 (1939). Where the commissionaire and the manufacturer (both partnerships) were under common control of members of the same family and part of any commission would inure to the partners of the manufacturer, it was held that the buying agency was not bona fide, and the so-called commission was properly a part of dutiable value. Fine Arts Bag Co. v. United States, supra. See also Paul Morris v. United States, 57 Cust.Ct. 585, R.D. 11207 (1966), application for review dismissed 58 Cust.Ct. 821, A.R.D. 221 (1967), holding that the agency was not bona fide, where at times the commissionaire supplied the basic materials for fabrication and the ex-factory price went to it, and where, after making payment for fabrication costs, it retained the profit or suffered the loss. In Park Avenue Imports v. United States, 62 Cust.Ct. 1035, A.R.D. 255, 299 F.Supp. 528 (1969), the court held that common control of the importer and the commissionaire did not preclude a finding of a bona fide buying agent relationship, but that if the commissionaire was in fact a seller or" }, { "docid": "257960", "title": "", "text": "298, 102 P.2d 180 (1940). American Law Institute, Restatement 2d Agency, § 1 reads as follows: Agency; Principal; Agent (1) Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. (2) The one for whom action is to be taken is the principal. (3) The one who is to act is the agent. Of particular applicability to the present case is the following “Comment” under § 1: b. Agency a legal concept. Agency is a legal concept which depends upon the existence of required factual elements: the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking. The relationship which the law calls agency does not depend upon the intent of the parties to create it, nor their belief that they have done so. To constitute the relation, there must be an agreement, but not necessarily a contract, between the parties; if the agreement results in the factual relation between them to which are attached the legal consequences of agency, an agency exists although the parties did not call it agency and did not intend the legal consequences of the relation to follow. # # # * * * When it is doubtful whether a representative is the agent of one or the other of two contracting parties, the function of the court is to ascertain the factual relation of the parties to each other and in so doing can properly disregard a statement in the agreement that the agent is to be the agent of one rather than the other, or a statement by the parties as to the legal relations which are thereby created. * * * As to whether there was in fact an agency relationship between Anderson and Cabeen, we recognize that in his af- fidavit Cabeen in conclusory fashion denied that Anderson was" }, { "docid": "14136901", "title": "", "text": "the choice of factories, did not receive substantiation of the freight charges and did not control the mode by which the goods were shipped. It did not take possession of the goods until they were on board ship in Kobe. The court held on these facts that an agency relationship did not exist between Matsu-moto and the importer and that there was no basis for a “commission.” In the instant case the agreement of March 13,1960 between Bushnell and Oriental Trading states that Oriental Trading is to handle purchasing details of merchandise “from the various factories * * * you deem * * * appropriate under the circumstances.” [Emphasis added.] This leaves the selection of the manufacturers to Oriental Trading. In view of this and the fact that Oriental Trading is a division of Toyo Jitsugyo KK, it is difficult to believe that Oriental Trading would find appropriate any manufacturer other than Toyo Jit-sugyo as to any product it offered. Cf. Fine Arts Bag Co. v. United States, supra, p. 634. While in the Fine Arts case, the court indicated that it might be that an agent who worked for a seller could be a bona fide buying agent of another, it stated that it would have to appear that the principal consented to the conflict of interest. In the case before us, the importer may have known that there was some common ownership of Oriental Trading and Toyo Jitsugyo, but it was not aware that the two were in fact a single company, and did not consent to the participation of Oriental Trading under the circumstances. Although Toyo Jitsugyo through Oriental Trading might properly serve as a buying agent of Bushnell in dealing with other sellers, it could not do so in regard to its own merchandise, where it was in effect dealing with itself, unless Bushnell had consented. Unless otherwise agreed, an agent is subject to a duty not to deal with, his principal as an adverse party nor to act on behalf of an adverse party in a transaction connected with his agency. Restatement of the Law" }, { "docid": "868986", "title": "", "text": "destroys the presumption; (2) the relationship existing between a principal and agent is a fiduciary one demanding conditions of trust and confidence which require of the agent the same obligation of individual service and loyalty as is imposed upon a trustee in favor of his beneficiary and that in all transactions concerning and affecting the subject matter of his agency, it is the duty of the agent to act with the utmost good faith and loyalty for the furtherance and advancement of the interests of his principal; (3) where a fiduciary relation is established between the parties the law views with suspicion and scrutinizes very closely all dealings between them in the subject matter of the agency to see that the agent has dealt with the utmost good faith and fairness, and that he has given the principal the benefit of all his knowledge and skill, and, if it appears that the agent has been guilty of any concealment or unfairness, or if he has taken any advantage of his confidential relation, the transaction will not be allowed to stand[;] and (4) one who acts as an agent and also deals with his principal with respect to the subject matter cannot take advantage of his principal by withholding from him any information within his knowledge, including the value of the property, which might have a bearing upon the desirability of the principal to make the trade. 182 Kan. at 555-56, 322 P.2d 740 (citations omitted). The court also relied upon the following quote from 2 Restatement of The Law, Agency, § 390 comment a: “... Before dealing with the principal on his own account, however, an agent has a duty, not only to make no misstatements of fact, but also to disclose to the principal all material facts fully and completely. A fact is material ... if it is one which the agent should realize would be likely to affect the judgment of the principal in giving his consent to the agent to enter into the particular transaction on the specified terms. Hence, the disclosure must include not only that" } ]

[ { "docid": "18713905", "title": "", "text": "section 362(d)(2)(A). The majority has adopted the definition relied upon by the bankruptcy court below: that “equity” refers to the difference between the value of the property and all encumbrances upon it. See, e.g., In re Faires, 34 B.R. 549, 551 (Bankr.W.D.Wash.1983); In re Shriver, 33 B.R. 176, 186-87 (Bankr.N.D.Ohio 1983); In re Trina-Dee, Inc., 26 B.R. 152, 154 (Bankr.E.D.Pa.1983), aff'd sub nom. Nazareth National Bank v. Trina-Dee, Inc., 731 F.2d 170 (3d Cir.1984); In re St. Peter’s School, 16 B.R. 404, 408 (Bankr.S.D.N.Y.1982); In re Dallasta, 7 B.R. 883, 885 (Bankr.E.D.Pa.1980). Cf. In re Mellor, 734 F.2d 1396, 1400-01 (9th Cir.1984) (junior liens, though not relevant in determining whether there is “adequate protection” under section 362(d)(1), may be relevant in determining “equity” under section 362(d)(2)). The minority view subtracts from the value of the property only the amounts owed to the lienholder challenging the stay and to more senior lienholders. See, e.g., In re Cote, 27 B.R. 510, 513 (Bankr.D.Or.1983); In re Palmer River Realty, Inc., 26 B.R. 138, 140 (Bankr.D.R.I.1983); In re Certified Mortgage Corp., 25 B.R. 662, 663 (Bankr.M.D.Fla.1982). The Cote court reasoned that dissolving the stay when some value remains after that subtraction would not be in the best interest of junior lien-holders because foreclosure by the senior lienholder might force the junior lienhold-ers to choose between purchasing the interest of the senior lienholder or losing their own security interests. We choose not to follow the minority view. The language of the statute simply refers to the debtor’s “equity,” which has been defined as “the amount or value of a property above the total liens or charges.” In re Faires, 34 B.R. at 552 (quoting Black’s Law Dictionary, 484 (5th ed. 1979) (emphasis added)). The statute does not refer to the debtor’s equity as against the only plaintiff-lienholder seeking to lift the stay or persons holding liens senior to that of the plaintiff-lienholder. The minority view improperly focuses upon the interests of junior lienholders as opposed to the interests of the debtor or senior lienholder. As the bankruptcy court in La Jolla Mortgage Fund v. Rancho" } ]

[ { "docid": "18581530", "title": "", "text": "residence that is overencumbered. See, e.g., In re Brown, 734 F.2d at 123 (“the overwhelming weight of authority holds that even if liens on the property exceed the market value of the property, leaving the debtor with no equity in it, the debtor nonetheless has an ‘equitable interest’ in the property”) (citing eases); Alu v. New York Department of Tax and Finance, 41 B.R. 955, 957 (E.D.N.Y.1984). The legislative history to section 541, which described “interest in property” very broadly, supports this view. See supra note 2. The more difficult question is whether, admitting that the liens are sought to be fixed on an interest of the debtor in property, those liens impair the Simonsons’ exemption. The majority answers this question in the negative as well. See majority opinion, typescript at 7-8 (“the Simonsons had no equity in their residence. Thus, there was no interest of the debtors which could be impaired by the two judgment liens_”). If the judicial liens in this case had not been avoided, as the majority suggests they should not have been, see id., typescript at 8, the judicial lienholders, because they were senior to the $41,815.84 second mortgage, would have been able to satisfy their claims out of the proceeds from the sale of the property. Under the majority view, then, the debtor’s subsequent encumbering of the property with the junior mortgage serves to insulate the judicial liens from the effect of section 522(f), because the total of the two (consensual) unavoidable encumbrances exceeds the value of the property. This approach is consistent with the reasoning adopted by the bankruptcy courts in In re Durham, 33 B.R. 23 (Bankr.D.Tenn.1983), and In re Fiore, 27 B.R. 48 (Bankr.D.Conn.1983). See also In re Boteler, 5 B.R. 408 (Bankr.S.D.Ala.1980). Like the case at hand, those cases involved judicial liens that occupied priority positions senior to those of concededly unavoidable mortgages. In each case, the debtor sought to avoid the judicial liens and then to “stand in the shoes” of the judicial lienor, thus preserving the priority position of the displaced lien for the benefit of the debtor’s" }, { "docid": "2179734", "title": "", "text": "it is essential to reorganization. Id. A minority of courts have taken the opposite view. See, In re Cote, 27 B.R. 510 (Bkrtcy.D.Or.1983); In re Palmer River Realty, Inc., 26 B.R. 138 (Bkrtcy.D.R.I.1983); In re Certified Mortgage Corp., 25 B.R. 662 (Bkrtcy.M.D.Fla.1982); In re Spring Garden Foliage, Inc., 15 B.R. 140 (Bkrtcy.M.D.Fla.1981); In re Wolford Enterprises, Inc., 11 B.R. 571 (Bkrtcy.S.D.W.Va.1981). Perhaps the best rationale for the minority’s view is articulated in In re Cote, supra, at 513, where the Court notes: There may be many instances when the holder of a lien inferior to the lien of a plaintiff does not want relief from the stay afforded to the plaintiff. In a foreclosure a junior lienholder is faced with the possibility that unless it purchases the interests of those holders of superior liens it will lose any recovery upon its lien. The junior lienholder may prefer to negotiate with the debtor for different payment terms or a reduction in the amount due to it. While the term “equity” in § 362(d)(2)(A) is not free from ambiguity as to its application to the facts at bar, the Court is convinced that the better view is that “equity” means the difference between the value of the property and all encumbrances against it. First, it is significant to the Court in seeking the proper definition of the term “equity” that it has been defined by a well known source as: The remaining interest belonging to one who has pledged or mortgaged his property, or the surplus of value which may remain after the property has been disposed of for the satisfaction of liens. The amount or value of a property above the total liens or charges. (Emphasis added). Black’s Law Dictionary 484 (5th ed. 1979). In the absence of contrary language in the statute or legislative history suggesting an interpretation other than in accord with this definition, the Court believes that Congress likely intended the word equity to have this general meaning. Second, the Court believes that where there is no value in the property to be realized for the estate in" }, { "docid": "18526410", "title": "", "text": "“equity cushion” analysis because the secured creditor is entitled to adequate protection only as to its claim; it may not claim protection for others. La Jolla Mortgage Fund, 18 B.R. at 289. In contrast, all liens are considered in calculating the equity retained by the debtor under section 362(d)(2), because the equity analysis in that section focuses on “the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of all unsecured creditors.” Pistole v. Mellor (In re Mellor), 734 F.2d 1396, 1400 n. 2 (9th Cir.1984). Thus, the analysis of the creditor’s “equity cushion” under section 362(d)(1) differs from a calculation of the debtor’s equity under section 362(d)(2) and does not render the term “equity” ambiguous. E.g., Mellor, 734 F.2d at 1400 n. 2 (noting that “equity cushion” differs from “equity” in that the former is concerned with the value of the property above the amount owed to the creditor with a secured claim and the latter is concerned with the value above all secured claims against the property); In re Colonial Ctr., Inc., 156 B.R. 452, 459-60 (Bankr.E.D.Pa.1993); In re South County Realty, Inc. II, 69 B.R. 611, 614 (Bankr.M.D.Fla.1987); In re Dunes Casino Hotel, 69 B.R. 784, 793-94 (Bankr.D.N.J.1986). C. We recognize that some bankruptcy courts have rejected the standard definition of equity for purposes of section 362(d)(2) analysis when junior lienholders protest the lifting of the automatic stay to permit foreclosure. See United Finance Co. v. Cote (In re Cote), 27 B.R. 510, 513 (Bankr.D.Or.1983); Asquino v. Palmer River Realty, Inc. (In re Palmer River Realty, Inc.), 26 B.R. 138, 140 (Bankr.D.R.I.1983); Central Fla. Prod. Credit Assoc. v. Spring Garden Foliage, Inc. (In re Spring Garden Foliage, Inc.), 15 B.R. 140, 143 (Bankr.M.D.Fla.1981). Nantucket Investors urges us to adopt that rule, but we decline to do so. We find no hint in the language or legislative history of section 362(d), and the interests balancing it incorporates, that authorizes excluding the junior lienholders’ claims from the equity calculation when their interests diverge from the senior lienholder’s." }, { "docid": "18801104", "title": "", "text": "to prove that the property is necessary to an effective reorganization. As stated previously, § 362(d)(1) and (d)(2) present alternative tests for determining if relief from stay is appropriate. The failure to obtain relief pursuant to § 362(d)(1) does not preclude granting relief under § 362(d)(2). See e.g., La Jolla Mortgage Fund v. Rancho El Cajon Associates, 18 B.R. 283, 8 B.C.D. 1035 (Bkrtcy.S.D.Cal.1982); First Connecticut Small Business Investment Co. v. Ruark (In re Ruark), 7 B.R. 46, 7 B.C.D. 59 (Bkrtcy.D.Conn.1980); Miners National Bank v. Schramm (In re Schramm), 12 B.R. 608 (Bkrtcy.E.D.Pa.1981). The court must find, however, that both conditions under § 362(d)(2) exist; one, under § 362(d)(2)(A), there must be a showing that the debtor has no equity in the property and, two, pursuant to § 362(d)(2)(B), there must be a showing that the property is not necessary to an effective reorganization. First National Bank v. L.H. and A. Realty, Inc., 24 B.R. 81 (Bkrtcy.D.Vt.1982); Besler v. Northwest Production Credit Association (In re Besler), 19 B.R. 879, 9 B.C.D. 404 (Bkrtcy.D.S.D.1982); La Jolla Mortgage Fund v. Rancho El Cajon Associates, supra. The issue arises, in determining the question of the debtor’s equity in the property under § 362(d)(2)(A), whether all the encumbrances on the subject property are to be considered or whether the interest of non-joining junior lien creditors should be ignored. Compare Harleysville National Bank and Trust Co. v. Kaufman (In re Kaufman), 24 B.R. 498 (Bkrtcy.E.D.Pa.1982); La Jolla Mortgage Fund v. Rancho El Cajon Associates, supra; and North East Federal Savings and Loan Association v. Mikole Developers (In re Mikole Developers, Inc.), 14 B.R. 524 (Bkrtcy.E.D.Pa.1981) (all encumbrances considered) with Central Florida Production Credit Association v. Spring Garden Foiliage, Inc. (In re Spring Garden Foliage, Inc.) 15 B.R. 140 (Bkrtcy.M.D.Fla.1981) (junior encumbrances unimportant if debtor has equity cushion over senior encumbrances). This Court agrees with the former authorities and holds that all encumbrances on the subject property are to be considered in determining if the debtor has equity in the property under § 362(d)(2)(A), whether or not all the secured claimholders have requested relief from" }, { "docid": "18526406", "title": "", "text": "request of a party in interest and after notice and a hearing, the court shall grant relief from the [automatic] stay ..., such as by terminating, annulling, modifying, or conditioning 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 under subsection (a) of this section, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. Section 362(d) is thus intended to balance the interests of the creditors and the debtor. CalFed sought relief from the automatic stay under both subsections (d)(1) and (d)(2) of section 362(d). We first review the district court’s conclusion that the debtor retained equity in the property. We conclude that the district court committed an error of law. A. The classic test for determining equity under section 362(d)(2) focuses on a comparison between the total hens against the property and the property’s current value. Stewart v. Gurley, 745 F.2d 1194, 1195 (9th Cir.1984) (citing cases); In re Hanley, 102 B.R. 36, 37 (W.D.Pa.1989); In re Colonial Ctr., Inc., 156 B.R. 452, 460 (Bankr.E.D.Pa.1993); La Jolla Mortg. Fund v. Rancho El Cajon Assocs., 18 B.R. 283, 290 (Bankr.S.D.Calif.1982); State Employee Re tirement Fund v. Gardner (In re Gardner), 14 B.R. 455, 456 (Bankr.E.D.Pa.1981); North East Fed. Savs. & Loan Assoc. v. Mikole Devels., Inc. (In re Mikole Devels., Inc.), 14 B.R. 524, 524 (Bankr.E.D.Pa.1981). “All encumbrances are totalled to determine equity whether or not all lienholders have requested relief from the stay.” Nazareth Nat’l Bank & Trust Co. v. Trina-Dee, Inc. (In re Trina-Dee, Inc.), 26 B.R. 152, 154 (Bankr.E.D.Pa.1983), aff'd, 731 F.2d 170 (3d Cir.1984). The district court chose not to apply this formula, finding it appropriate under the circumstances to exclude consideration of the junior secured claims held by Nantucket and FEC. Nantucket Investors argues that the district court properly excluded the interests of it and FEC because both agreed to compromise their interests in a subordination agreement" }, { "docid": "18526407", "title": "", "text": "Stewart v. Gurley, 745 F.2d 1194, 1195 (9th Cir.1984) (citing cases); In re Hanley, 102 B.R. 36, 37 (W.D.Pa.1989); In re Colonial Ctr., Inc., 156 B.R. 452, 460 (Bankr.E.D.Pa.1993); La Jolla Mortg. Fund v. Rancho El Cajon Assocs., 18 B.R. 283, 290 (Bankr.S.D.Calif.1982); State Employee Re tirement Fund v. Gardner (In re Gardner), 14 B.R. 455, 456 (Bankr.E.D.Pa.1981); North East Fed. Savs. & Loan Assoc. v. Mikole Devels., Inc. (In re Mikole Devels., Inc.), 14 B.R. 524, 524 (Bankr.E.D.Pa.1981). “All encumbrances are totalled to determine equity whether or not all lienholders have requested relief from the stay.” Nazareth Nat’l Bank & Trust Co. v. Trina-Dee, Inc. (In re Trina-Dee, Inc.), 26 B.R. 152, 154 (Bankr.E.D.Pa.1983), aff'd, 731 F.2d 170 (3d Cir.1984). The district court chose not to apply this formula, finding it appropriate under the circumstances to exclude consideration of the junior secured claims held by Nantucket and FEC. Nantucket Investors argues that the district court properly excluded the interests of it and FEC because both agreed to compromise their interests in a subordination agreement in order to avoid foreclosure. We find that the following factors weigh against Nantucket Investors’ position: (1) the plain language of section 362(d)(2)(A); (2) the legislative history and policies behind the Bankruptcy Code; and (3) the fact that the Code provides other means by which the interests of junior lienholders may be protected. B. The Bankruptcy Code does not define the term “equity” in section 362(d)(2)(A) or in any other section. Nor does the legislative history shine any direct light on the intended meaning of this term. When Congress enacted the present-day Bankruptcy Code, however, the generally understood meaning of equity interest was the value of a property above all secured liens. See Black’s Law Dictionary 634 (4th ed. 1968) (defining equity for purposes of real estate transactions as: “The remaining interest belonging to one who has pledged or mortgaged his property, or the surplus of value which may remain after the property has been disposed of for the satisfaction of liens. The amount or value of a property above the total liens or charges.”)." }, { "docid": "18526409", "title": "", "text": "We must assume that Congress was cognizant of this traditional meaning when it enacted section 362(d)(2)(A) without a controlling definition. See Walter E. Heller Western, Inc. v. Faires (In re Faires), 34 B.R. 549, 552 (Bankr.W.D.Wash.1983). Nantucket Investors argues that the term equity in section 362(d)(2) is ambiguous because equity is accorded a different meaning when the creditor’s “equity cushion” is calculated in determining whether the creditor’s interest is adequately protected under section 362(d)(1). The text of section 362(d)(1), which governs relief from the automatic stay for good cause including lack of adequate protection, does not contain the term “equity.” However, in determining whether a secured creditor’s interest is adequately protected, most courts engage in an analysis of the property’s “equity cushion”— the value of the property after deducting the claim of the creditor seeking relief from the automatic stay and all senior claims. See, e.g., In re Colonial Center, Inc., 156 B.R. 452, 459 (Bankr.E.D.Pa.1993); La Jolla Mortg. Fund v. Rancho El Cajon Assocs., 18 B.R. 283, 289 (Bankr.S.D.Calif.1982). Junior liens are disregarded for “equity cushion” analysis because the secured creditor is entitled to adequate protection only as to its claim; it may not claim protection for others. La Jolla Mortgage Fund, 18 B.R. at 289. In contrast, all liens are considered in calculating the equity retained by the debtor under section 362(d)(2), because the equity analysis in that section focuses on “the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of all unsecured creditors.” Pistole v. Mellor (In re Mellor), 734 F.2d 1396, 1400 n. 2 (9th Cir.1984). Thus, the analysis of the creditor’s “equity cushion” under section 362(d)(1) differs from a calculation of the debtor’s equity under section 362(d)(2) and does not render the term “equity” ambiguous. E.g., Mellor, 734 F.2d at 1400 n. 2 (noting that “equity cushion” differs from “equity” in that the former is concerned with the value of the property above the amount owed to the creditor with a secured claim and the latter is concerned with the value above" }, { "docid": "3718473", "title": "", "text": "court’s reasons for lifting the stay are also reasons for lifting it immediately. Those reasons, especially the declining value of the mortgaged property, are adequate to support the district court’s decision to make its order effective immediately. The court did not abuse its discretion. 3. Lifting the Automatic Stay We review the district court’s order lifting the automatic stay under the provisions of Rule 8013 of the Federal Rules of Bankruptcy. The court’s findings of fact are reviewed for clear error; its conclusions of law are reviewed de novo. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). A creditor may seek relief from the automatic stay provisions of § 362 if there is inadequate protection of its interest in collateral, or, where the collateral is real property, if the debtor has no equity in the property and the property is not necessary to an effective reorganization. 11 U.S.C. § 362(d). Although the district court found that both these statutory provisions justified granting relief to Equitable, the provisions are disjunctive. Nazareth National Bank v. Trina-Dee, Inc., 731 F.2d 170, 171 (3d Cir.1984). We may therefore affirm even if we find that only one of the two provisions justified lifting the stay. The burden of proof on these matters lies with the debtor, except for the issue of whether the debtor has any equity in property. See In re Greiman, 45 B.R. 574, 579 (Bankr. Iowa 1984); In re Gauvin 24 B.R. 578, 580 (Bankr.Cal.1982). The court based its ruling chiefly on section 362(d)(2). Both parties agree that Sun Valley had no equity in the property, so the first requirement of this provision is met. Sun Valley contends, however, that the court clearly erred in determining that the farm property was not necessary for an effective reorganization. The basis for its determination was its finding that no reorganization was possible. See In re Development, Inc., 36 B.R. 998, 1005 (Bankr. Haw.1984) (focusing on whether there is “a reasonable possibility of a successful reorganization within a reasonable time”); La-Jolla Mortgage Fund v. Rancho El Cajon Associates, 18 B.R. 283, 291 (Bankr.Cal.1982); see" }, { "docid": "18526412", "title": "", "text": "As the Court of Appeals for the Ninth Circuit has explained: The language of the statute simply refers to the debtor’s “equity,” which has been defined as ‘the amount or value of a property above the total hens or charges.’ The statute does not refer to the debtor’s equity as against the only plaintiff-lienholder seeking to lift the stay or persons holding liens senior to that of the plaintiff-lienholder. The minority view improperly focuses upon the interests of junior lienhold-ers.... Stewart v. Gurley, 745 F.2d at 1196 (quoting Walter E. Heller Western, Inc. v. Faires (In re Faires), 34 B.R. 549, 552 (Bankr.W.D.Wash.1983)). A definition of equity that requires consideration of all secured liens comports with the purpose of section 362(d)(2) analysis and strikes the proper balance among the secured creditors’, the unsecured creditors’, and the debtor’s interests. The basic purpose behind Chapter 11 of the Bankruptcy Code is to offer protection to the insolvent debtor who seeks rehabilitation through a plan of reorganization. To the extent that property is of no benefit to the debtor, because the debtor retains no equity in it and the property is unnecessary to an effective reorganization, only the junior lienholders will benefit by avoiding foreclosure, at the expense of senior lienholders. See Stewart v. Gurley, 745 F.2d at 1196 (“Unless the debtor can demonstrate that the property is necessary to an effective reorganization, the property is of no value to him. Refusing to grant relief from the automatic stay under those circumstances would only promote the junior lienholders’ interests over those of the senior lienholder.”). Furthermore, we note that the language of section 362(d)(2) is mandatory, when both factors necessary for relief under section 362(d)(2) are met “the court shall grant relief.” 11 U.S.C. § 362(d)(2). Excluding the claims of objecting junior lienholders from the equity calculation when the subsection (d)(2) factors are otherwise met would thus contravene the plain language of that provision. D. Our refusal to adopt Nantucket Investors’ position does not prevent the bankruptcy court from otherwise considering the interests of objecting junior lienholders. On the contrary, when a senior" }, { "docid": "18801105", "title": "", "text": "Jolla Mortgage Fund v. Rancho El Cajon Associates, supra. The issue arises, in determining the question of the debtor’s equity in the property under § 362(d)(2)(A), whether all the encumbrances on the subject property are to be considered or whether the interest of non-joining junior lien creditors should be ignored. Compare Harleysville National Bank and Trust Co. v. Kaufman (In re Kaufman), 24 B.R. 498 (Bkrtcy.E.D.Pa.1982); La Jolla Mortgage Fund v. Rancho El Cajon Associates, supra; and North East Federal Savings and Loan Association v. Mikole Developers (In re Mikole Developers, Inc.), 14 B.R. 524 (Bkrtcy.E.D.Pa.1981) (all encumbrances considered) with Central Florida Production Credit Association v. Spring Garden Foiliage, Inc. (In re Spring Garden Foliage, Inc.) 15 B.R. 140 (Bkrtcy.M.D.Fla.1981) (junior encumbrances unimportant if debtor has equity cushion over senior encumbrances). This Court agrees with the former authorities and holds that all encumbrances on the subject property are to be considered in determining if the debtor has equity in the property under § 362(d)(2)(A), whether or not all the secured claimholders have requested relief from the stay. The opposite view, that only the senior encumbrances should be considered, seems to confuse the question of an “equity cushion” or value over and above the senior encumbrances’s claim as “adequate protection” under § 362(d)(1) with whether there is any “equity” in the property or value above all secured claims against the property that can be realized from the sale of the property for unsecured creditors under § 362(d)(2)(A). As Judge Meyers ably explained in La Jolla Mortgage Fund v. Rancho El Cajon Associates, however, there is a significant difference: Shortly after the Code became effective, this Court in In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838 (Bkrtcy.S.D.CA.1980), recognized that in appropriate cases the value of the collateral itself could provide adequate protection. Both this Court, and others, referred to this as the ‘equity cushion’ approach.... It has been defined as 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" }, { "docid": "18713906", "title": "", "text": "Mortgage Corp., 25 B.R. 662, 663 (Bankr.M.D.Fla.1982). The Cote court reasoned that dissolving the stay when some value remains after that subtraction would not be in the best interest of junior lien-holders because foreclosure by the senior lienholder might force the junior lienhold-ers to choose between purchasing the interest of the senior lienholder or losing their own security interests. We choose not to follow the minority view. The language of the statute simply refers to the debtor’s “equity,” which has been defined as “the amount or value of a property above the total liens or charges.” In re Faires, 34 B.R. at 552 (quoting Black’s Law Dictionary, 484 (5th ed. 1979) (emphasis added)). The statute does not refer to the debtor’s equity as against the only plaintiff-lienholder seeking to lift the stay or persons holding liens senior to that of the plaintiff-lienholder. The minority view improperly focuses upon the interests of junior lienholders as opposed to the interests of the debtor or senior lienholder. As the bankruptcy court in La Jolla Mortgage Fund v. Rancho El Cajon Associates, 18 B.R. 283, 290 (Bankr.S.D.Cal.1982), observed, Chapter 11 reorganization should benefit the debtor’s interests and not exclusively those of junior lienholders. Id. (citing In re St. Peter’s School, 16 B.R. at 408). Unless the debtor can demonstrate that the property is necessary to an effective reorganization, the property is of no value to him. Refusing to grant relief from the automatic stay under those circumstances would only promote the junior lienholders’ interests over those of the senior lienholder. See In re Faires, 34 B.R. at 552. Should the junior lienholders want to protect their interests, they may bid at the foreclosure sale just as if the bankruptcy proceedings had not intervened. The junior lienholders might also find it advantageous in certain instances to have a senior lienholder shoulder the burden of commencing foreclosure proceedings. See Id. Affirmed. . 11 U.S.C. § 362(d) provides that: (d) 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" }, { "docid": "18526411", "title": "", "text": "all secured claims against the property); In re Colonial Ctr., Inc., 156 B.R. 452, 459-60 (Bankr.E.D.Pa.1993); In re South County Realty, Inc. II, 69 B.R. 611, 614 (Bankr.M.D.Fla.1987); In re Dunes Casino Hotel, 69 B.R. 784, 793-94 (Bankr.D.N.J.1986). C. We recognize that some bankruptcy courts have rejected the standard definition of equity for purposes of section 362(d)(2) analysis when junior lienholders protest the lifting of the automatic stay to permit foreclosure. See United Finance Co. v. Cote (In re Cote), 27 B.R. 510, 513 (Bankr.D.Or.1983); Asquino v. Palmer River Realty, Inc. (In re Palmer River Realty, Inc.), 26 B.R. 138, 140 (Bankr.D.R.I.1983); Central Fla. Prod. Credit Assoc. v. Spring Garden Foliage, Inc. (In re Spring Garden Foliage, Inc.), 15 B.R. 140, 143 (Bankr.M.D.Fla.1981). Nantucket Investors urges us to adopt that rule, but we decline to do so. We find no hint in the language or legislative history of section 362(d), and the interests balancing it incorporates, that authorizes excluding the junior lienholders’ claims from the equity calculation when their interests diverge from the senior lienholder’s. As the Court of Appeals for the Ninth Circuit has explained: The language of the statute simply refers to the debtor’s “equity,” which has been defined as ‘the amount or value of a property above the total hens or charges.’ The statute does not refer to the debtor’s equity as against the only plaintiff-lienholder seeking to lift the stay or persons holding liens senior to that of the plaintiff-lienholder. The minority view improperly focuses upon the interests of junior lienhold-ers.... Stewart v. Gurley, 745 F.2d at 1196 (quoting Walter E. Heller Western, Inc. v. Faires (In re Faires), 34 B.R. 549, 552 (Bankr.W.D.Wash.1983)). A definition of equity that requires consideration of all secured liens comports with the purpose of section 362(d)(2) analysis and strikes the proper balance among the secured creditors’, the unsecured creditors’, and the debtor’s interests. The basic purpose behind Chapter 11 of the Bankruptcy Code is to offer protection to the insolvent debtor who seeks rehabilitation through a plan of reorganization. To the extent that property is of no benefit to the" }, { "docid": "18526408", "title": "", "text": "in order to avoid foreclosure. We find that the following factors weigh against Nantucket Investors’ position: (1) the plain language of section 362(d)(2)(A); (2) the legislative history and policies behind the Bankruptcy Code; and (3) the fact that the Code provides other means by which the interests of junior lienholders may be protected. B. The Bankruptcy Code does not define the term “equity” in section 362(d)(2)(A) or in any other section. Nor does the legislative history shine any direct light on the intended meaning of this term. When Congress enacted the present-day Bankruptcy Code, however, the generally understood meaning of equity interest was the value of a property above all secured liens. See Black’s Law Dictionary 634 (4th ed. 1968) (defining equity for purposes of real estate transactions as: “The remaining interest belonging to one who has pledged or mortgaged his property, or the surplus of value which may remain after the property has been disposed of for the satisfaction of liens. The amount or value of a property above the total liens or charges.”). We must assume that Congress was cognizant of this traditional meaning when it enacted section 362(d)(2)(A) without a controlling definition. See Walter E. Heller Western, Inc. v. Faires (In re Faires), 34 B.R. 549, 552 (Bankr.W.D.Wash.1983). Nantucket Investors argues that the term equity in section 362(d)(2) is ambiguous because equity is accorded a different meaning when the creditor’s “equity cushion” is calculated in determining whether the creditor’s interest is adequately protected under section 362(d)(1). The text of section 362(d)(1), which governs relief from the automatic stay for good cause including lack of adequate protection, does not contain the term “equity.” However, in determining whether a secured creditor’s interest is adequately protected, most courts engage in an analysis of the property’s “equity cushion”— the value of the property after deducting the claim of the creditor seeking relief from the automatic stay and all senior claims. See, e.g., In re Colonial Center, Inc., 156 B.R. 452, 459 (Bankr.E.D.Pa.1993); La Jolla Mortg. Fund v. Rancho El Cajon Assocs., 18 B.R. 283, 289 (Bankr.S.D.Calif.1982). Junior liens are disregarded for" }, { "docid": "2179732", "title": "", "text": "resides in the party requesting relief. 11 U.S.C. § 362(g). See In re Bialac, 15 B.R. 901, 903 (9th Cir.Bkrtcy.App.1981). If the term “equity” as employed in Section 362(d)(2)(A) means the difference between the value of the property and all the encumbrances against it, the debtors have no equity in the three parcels at issue. As previously indicated, the subject properties have a net maximum value of $954,000, securing total debts of approximately $984,-179.95. However, if the term “equity” in the statute means the difference between the value of the property and the lien which is the subject of relief, along with any liens senior thereto, the debtors do have an equity. Excluding the junior Seattle-First lien debt, the debtors have a minimum equity in the subject properties of approximately $171,517.39. There is nothing in the legislative history to § 362 to assist the Court in its interpretation of the word “equity” and courts have differed over the proper definition. The predominate view is that the term “equity” refers to the difference between the value of the property and all encumbrances against it. See, e.g., In re Trina-Dee, Inc., 26 B.R. 152 (Bkrtcy.E.D.Pa.1983); In re Koopmans, 22 B.R. 395 (Bkrtcy.D.Utah1982); In re Crescent Beach Inn, Inc., 22 B.R. 161 (Bkrtcy.D.Maine 1982); In re La Jolla Mortgage Fund, 18 B.R. 283 (Bkrtcy.S.D.Cal.1982); In re Saint Peter’s School, 16 B.R. 404 (Bkrtcy.S.D.N.Y.1982); First Connecticut Small Business Investment Company v. Ruark, 7 B.R. 46 (Bkrtcy.D.Conn.1980); In re Dallasta, 7 B.R. 883 (Bkrtcy.E.D.Pa.1980); Note, “Automatic Stay under the 1978 Bankruptcy Code: An Equitable Roadblock to Secured Creditor Relief,” 17 San Diego L.Rev. 1113, 1123 (1980). This view appears to be grounded in part on the policy determination that a Chapter 11 reorganization, as here, should not prefer junior lienors over senior lienors, or even over the debtors’ interests. See, e.g., In re La Jolla Mortgage Fund, supra, at 290. It follows from this reasoning that where there is no value available to be realized to contribute to the reorganization process, the debtor should not be able to protect property unless it can show that" }, { "docid": "20283775", "title": "", "text": "mortgage liens of Orrstown, however, Debtor may be providing adequate protection to the bank in the form of an “equity cushion.” An equity cushion is the value of the property after the claim of the creditor seeking relief from the automatic stay and all senior claims are deducted. Nantucket Investors II v. Cal. Fed. Bank (In re Indian Palms Assoc., Ltd.), 61 F.3d 197, 207 (3d Cir.1995). To determine whether Orrstown’s interest in the Greencastle Property is protected by an equity cushion, this Court must first determine its value. B. The equity requirement under 11 U.S.C. § 362(d)(2) Under § 362(d)(2) the Court must conduct a slightly different analysis to determine whether Debtor has equity in the Property and whether it is necessary for an effective reorganization. Whether a debtor has any equity in a property for purposes of § 362(d)(2) is determined by comparing the amount of all liens against the property to its value, not just the lien in question and all superior liens. Id. at 206. “All encumbrances are totalled to determine equity whether or not all lien-holders have requested relief from the stay.” Nazareth Nat’l Bank & Trust Co. v. Trina-Dee, Inc. (In re Trina-Dee, Inc.), 26 B.R. 152, 154 (Bankr.E.D.Pa.1984), aff'd, 731 F.2d 170 (3d Cir.1984). Therefore, while different approaches are pursued when calculating equity for purposes of (d)(1) when compared to (d)(2), both analyses require that a court determine the value of the collateral. C. Analysis of the appraisals In the within case, both appraisers used similar approaches to evaluate the Green-castle Property. Both employed two of the three generally accepted valuation methods&emdash;the cost approach and the comparable sales approach. Both appraisers determined that the income approach was not an appropriate methodology to determine the value of the Greencastle Property. Using the cost approach, Gearhart valued the Property at $600,000, and Aush-erman valued it at $444,000. Although both appraisers valued the Property under the cost approach, neither appraiser relied upon this method to any significant extent when he determined its value. Using the sales comparison approach, Gearhart valued the Property at $525,000 while Aush-erman" }, { "docid": "1936891", "title": "", "text": "THE AUTOMATIC STAY The Bankruptcy Code permits modification of the automatic stay upon alternative grounds. Relief may be granted under § 362(d)(1) upon a finding that the creditor’s interest in property is not adequately protected or under § 362(d)(2) upon a finding that the debtor has no equity in the property and that the property is not necessary to an effective reorganization. See In re Schramm, 12 B.R. 608 (Bankr.E.D.Pa.1981). UJB maintains (1) the debtor has not provided it with adequate protection and (2) the debtors have no equity in the residential property and that it is not necessary to an effective reorganization. Therefore, UJB claims that it is entitled to an Order granting relief from the automatic stay. A. LACK OF EQUITY AND NECESSITY FOR EFFECTIVE REORGANIZATION. The burden of proof with respect to whether or not the debtor has equity in the collateral rests with the moving party. 11 U.S.C. § 362(g). The term “equity” under § 362(d)(2)(A) has been defined by the majority of courts as the difference between the value of the property and all encumbrances against it, including the interests of junior lienholders. Stewart v. Gurley, 745 F.2d 1194, 1195 (9th Cir.1984); In re Faires, 34 B.R. 549, 551 (Bankr.W.D.Wash.1983). This court adopts the majority definition. For the reasons hereinafter set forth, this court is of the opinion that UJB has failed to meet the burden of proof that the debtor has no equity in the collateral. For the purposes of determining the value of the debtors’ property, the debtors’ equity, and whether the creditor has adequate protection, the court is of the opinion that the value of all collateral should be considered. This is appropriate here where UJB recognized at the outset that the mortgage on the commercial property did not adequately secure the indebtedness due to it. UJB required and received additional collateral. The indebtedness of the Cardells to UJB on the foreclosure judgment as of November 30, 1987 was $486,035.15. UJB’s security for this indebtedness consists of a second mortgage on the debtors’ commercial property; the second mortgage on the residential property" }, { "docid": "1936892", "title": "", "text": "the property and all encumbrances against it, including the interests of junior lienholders. Stewart v. Gurley, 745 F.2d 1194, 1195 (9th Cir.1984); In re Faires, 34 B.R. 549, 551 (Bankr.W.D.Wash.1983). This court adopts the majority definition. For the reasons hereinafter set forth, this court is of the opinion that UJB has failed to meet the burden of proof that the debtor has no equity in the collateral. For the purposes of determining the value of the debtors’ property, the debtors’ equity, and whether the creditor has adequate protection, the court is of the opinion that the value of all collateral should be considered. This is appropriate here where UJB recognized at the outset that the mortgage on the commercial property did not adequately secure the indebtedness due to it. UJB required and received additional collateral. The indebtedness of the Cardells to UJB on the foreclosure judgment as of November 30, 1987 was $486,035.15. UJB’s security for this indebtedness consists of a second mortgage on the debtors’ commercial property; the second mortgage on the residential property which was foreclosed; a first lien on the accounts receivable of Cardell & Associates as security for guarantee of Associates; and the guarantees of Old Coach Leasing, Old Coach Realty and the Cardells. UJB can look to all of the above collateral to satisfy the amount due. The court has found as a matter of fact that the value of collateral is at least $873,000 after deducting the first mortgage from the value of the residential property. That amount exceeds the amount of UJB’s judgment as reduced by $93,250 by approximately $480,000. Since there was no evidence of other liens , the debtors clearly have equity in the collateral. As the moving party has not sustained its burden of proof with respect to the debtors lack of equity in the collateral, relief from the stay should not be granted under § 362(d)(2) and there is no reason for the court to make a determination as to whether the residence is necessary for an effective reorganization. B. LACK OF ADEQUATE PROTECTION. The moving party also maintains" }, { "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": "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": "2179733", "title": "", "text": "of the property and all encumbrances against it. See, e.g., In re Trina-Dee, Inc., 26 B.R. 152 (Bkrtcy.E.D.Pa.1983); In re Koopmans, 22 B.R. 395 (Bkrtcy.D.Utah1982); In re Crescent Beach Inn, Inc., 22 B.R. 161 (Bkrtcy.D.Maine 1982); In re La Jolla Mortgage Fund, 18 B.R. 283 (Bkrtcy.S.D.Cal.1982); In re Saint Peter’s School, 16 B.R. 404 (Bkrtcy.S.D.N.Y.1982); First Connecticut Small Business Investment Company v. Ruark, 7 B.R. 46 (Bkrtcy.D.Conn.1980); In re Dallasta, 7 B.R. 883 (Bkrtcy.E.D.Pa.1980); Note, “Automatic Stay under the 1978 Bankruptcy Code: An Equitable Roadblock to Secured Creditor Relief,” 17 San Diego L.Rev. 1113, 1123 (1980). This view appears to be grounded in part on the policy determination that a Chapter 11 reorganization, as here, should not prefer junior lienors over senior lienors, or even over the debtors’ interests. See, e.g., In re La Jolla Mortgage Fund, supra, at 290. It follows from this reasoning that where there is no value available to be realized to contribute to the reorganization process, the debtor should not be able to protect property unless it can show that it is essential to reorganization. Id. A minority of courts have taken the opposite view. See, In re Cote, 27 B.R. 510 (Bkrtcy.D.Or.1983); In re Palmer River Realty, Inc., 26 B.R. 138 (Bkrtcy.D.R.I.1983); In re Certified Mortgage Corp., 25 B.R. 662 (Bkrtcy.M.D.Fla.1982); In re Spring Garden Foliage, Inc., 15 B.R. 140 (Bkrtcy.M.D.Fla.1981); In re Wolford Enterprises, Inc., 11 B.R. 571 (Bkrtcy.S.D.W.Va.1981). Perhaps the best rationale for the minority’s view is articulated in In re Cote, supra, at 513, where the Court notes: There may be many instances when the holder of a lien inferior to the lien of a plaintiff does not want relief from the stay afforded to the plaintiff. In a foreclosure a junior lienholder is faced with the possibility that unless it purchases the interests of those holders of superior liens it will lose any recovery upon its lien. The junior lienholder may prefer to negotiate with the debtor for different payment terms or a reduction in the amount due to it. While the term “equity” in § 362(d)(2)(A) is not free" } ]

[ { "docid": "23427744", "title": "", "text": "HEANEY, Circuit Judge. Danny Clark Cross, an attorney, appeals pro se from the district court’s , dismissal without prejudice of his employment discrimination action, 563 F.Supp. 368. The court dismissed Cross’s claim pursuant to Fed.R.Civ.P. 37(b) for willful failure to comply with a discovery order. Subsequently, the district court also revoked Cross’s in forma pauperis status, and assessed certain costs against him. On appeal, Cross contends that the district court (1) abused its discretion in dismissing his cause of action, (2) improperly dismissed one count of his complaint alleging conspiracy under 42 U.S.C. § 1985(3), (3) improperly revoked his in forma pauperis status, and (4) erred in assessing certain costs against him. We affirm. BACKGROUND On April 4,1980, Cross filed a civil rights action against his former employer, General Motors Corporation (GMC), asserting claims of employment discrimination under 42 U.S.C. §§ 1981 and 1985(3). Cross alleged that GMC and its agents had conspired to harass him and deprive him of employment rights because of his race. He further alleged racially motivated disparate treatment by GMC. Cross filed a motion to proceed in forma pauperis, which the district court granted based on a financial affidavit filed by Cross in October of 1980. The course of events after Cross filed his complaint was far from smooth. After several amendments and proposed amendments to pleadings, numerous motions, four pretrial conferences between the court and the parties on discovery and pleading matters, and ten trial dates, the case finally came to trial on January 5, 1982. Following jury selection, GMC informed the court that in December, 1981, Cross had been served with a subpoena duces tecum requiring him to produce at trial all his income tax returns for the years 1968 to 1981. Cross did not produce the tax returns on January 5. He stated that he did not believe the subpoena was valid because it requested that the documents be produced on December 7, 1981, the date of a prior trial setting of the case, yet the subpoena was not served until December 22, 1981. Judge Hungate stated that he did not want" } ]

[ { "docid": "1670699", "title": "", "text": "claim frivolous since receipt of the Order dismissing his action. That Order clearly specified the reason for dismissal. If plaintiff wishes to refile his complaint and provide the Court with reasons in support of his request for monetary damages, he may clearly do so now, or whenever he so desires. The dismissal of January 26, 1976 was without prejudice and it does not prevent him from refiling his action with this Court and reapplying for leave to proceed in forma pauperis. The Court deems its denial of leave to proceed in forma pauperis and dismissal on the basis of frivolity to have been proper. Although plaintiff is free to do so, he has made no attempt to refile his complaint with this Court, despite the fact that the Order of dismissal in effect told him how to file a non-frivolous complaint based on the same claim. This Court, therefore, deems plaintiff’s appeal in this cause to be frivolous and taken without good faith. Accordingly, it is therefore ORDERED pursuant to the provisions of 28 U.S.C. § 1915(a) and Rule 24(a), Federal Rules of Appellate Procedure, that plaintiff’s appeal in this cause is certified as not taken in good faith. It is further ORDERED pursuant to Rule 24(a), Federal Rules of Appellate Procedure, that plaintiff’s motion to proceed on appeal in forma pauperis be, and the same is hereby, denied. . The Court notes that the court approved forms for actions by state prisoners under 42 U.S.C. § 1983 are quite similar in nature, although not in the specific information sought, to the forms required by Local Rule 22 for petitions for habeas corpus by persons in state custody." }, { "docid": "22302598", "title": "", "text": "it is dismissed. Accordingly, in the future, a district judge should deny leave to proceed in forma pauperis if an action is frivolous or malicious. If the motion is granted and the complaint filed, the matter cannot be dismissed until summons has issued. This practice will avoid any conflict between section 1915 and Fed.R.Civ.P. 4(a). We stress, however, that this opinion does not change the stringent standards to be applied in deciding whether a complaint is frivolous or malicious. In the case before us, however, a remand is unnecessary since the district judge’s determination that the complaint is frivolous is correct and leave to proceed in forma pauperis could have been denied. The Seventh Amendment, upon which plaintiffs’ claim is grounded, does not apply in state courts. Moreover, the federal district court does not have jurisdiction over the state, and if we assume the judge of the court is intended as the defendant, he is immune from liability for damages. Finally, the only activity of the insurance company which could be considered as being “under color of state law” for the purposes of 42 U.S.C. § 1983 would be its character as plaintiff in the state court action and this would not be sufficient. The order of the district court is affirmed. . 28 U.S.C. § 1915(a) provides: Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that he is entitled to redress. An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. . 28 U.S.C. § 1915(d) provides: The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue,' or if" }, { "docid": "22213060", "title": "", "text": "ORDER EBEL, Circuit Judge. Plaintiff-Appellant Ronnie Rolland seeks leave from this court to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915 and Fed. R.App. P. 24. He wishes to appeal the district court’s grant of summary judgment in favor of the Defendants-Appellees (collectively, “Prime-source”) on his claim that Primesource discriminatorily terminated his employment based upon his race, in violation of Title VII and 42 U.S.C. § 1981. Before considering Rolland’s Rule 24 motion, we first address our authority to entertain it in light of apparently contrary statutory language in 28 U.S.C. § 1915. Under that provision, “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The district court made the triggering certification in its order denying Rolland’s motion below for leave to proceed in forma pauperis on appeal. Rolland does not appeal the district court’s denial of his motion below; he rather has filed a new motion in this court seeking in forma pauperis status. Upon its face, § 1915(a)(3) would appear to foreclose our consideration of Rolland’s instant motion; its mandatory language denies the availability of an appeal in forma pauperis upon the district court’s certification of a lack of good faith, and it provides no escape hatch of appellate review or reconsideration. Federal Rule of Appellate Procedure 24(a)(5), on the other hand, purports to expressly permit our consideration of a motion such as Rolland’s. The palpable conflict between these provisions is resolved in favor of the procedures dictated by Rule 24(a)(5), by virtue of the fact that its most recent reenactment postdates that of § 1915(a)(3). The Sixth Circuit confronted this same question and concluded that pursuant to the Rules Enabling Act, which provides that “[a]ll laws in conflict with [the federal] rules [of procedure] shall be of no further force or effect after such rules have taken effect,” 28 U.S.C. § 2072(b), the amended Rule 24 trumped the conflicting provision in § 1915(a)(3).... [The Sixth Circuit thus] held that the party could file, within thirty days" }, { "docid": "2181278", "title": "", "text": "under which he was sentenced was unconstitutional and discriminatory in that, unlike other federal criminal statutes, it provides greater penalties for violators with similar prior convictions. Gershon’s petition to this Court also shows that he petitioned the District Court for leave to appeal in forma pauperis from its order of February 12, 1957, denying his second motion to vacate his sentence. That order reads as follows: “The defendant has filed ‘Motion to vacate, correct, or set aside judgment’ of sentence imposed upon him on May 7, 1954, when he entered a plea of guilty to violating the Narcotics Act, and was committed to the custody of the Attorney General for ten years, under the provisions of the ‘Boggs Act’. “On November 28, 1956, he also filed such a motion, which was duly considered by the court and overruled. The grounds alleged in his present motion are practically the same as those alleged in the motion filed on November 28. Section 2255 Title 28 U.S.C.A. provides: “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” “Said motion is hereby overruled, not only for the reason that the court may not be required to entertain more than one motion, but also for the reason that it is entirely without merit.” The District Court, in denying Ger-shon leave to appeal in forma pauperis from this order, stated that the appeal “is entirely without merit, and therefore not taken in good faith.” Title 28 U.S.C. § 1915(a) authorizes proceedings in forma pauperis on appeal, but provides that “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” Gershon contends that the District Court abused its discretion in denying him leave to appeal in forma pauperis, and asserts: “The issue raised in the petition was based on the punitive measures of the Boggs Act, inasmuch that it singled out repeated offenders of narcotics laws and to increase the punishment with mandatory sentences for each subsequent offense, but" }, { "docid": "22213062", "title": "", "text": "of service of the district court’s order denying IFP status on appeal, a motion with this court for leave to proceed IFP on appeal in accordance with the procedures set forth in Federal Rule of Appellate Procedure 24(a)(5). Owens v. Keeling, 461 F.3d 763, 775 (6th Cir.2006) (citations omitted). We conclude, as did the Sixth Circuit, that the amendment of Rule 24 in 1998 has trumped, at least for now, the effect of the conflicting statutory provision in § 1915(a)(3). See id.; Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir.1999); see also Wooten v. D.C. Metro. Police Dep’t, 129 F.3d 206, 207 (D.C.Cir.1997) (“[S]ince the district court certified that Wooten’s appeal was not taken in good faith, Wooten must pay the full filing fee ..., unless the certification is set aside. The ‘unless’ qualification is necessary in light of Fed. R.App. P. 24(a).... ”). But see Baugh v. Taylor, 117 F.3d 197, 201-02 (5th Cir.1997) (finding no conflict between § 1915(a)(3) and Rule 24(a), thus permitting consideration of Rule 24(a)(5) motions following district court’s certification of lack of good faith). Accordingly, a party who seeks in forma pauperis status and is certified by the district court as not appealing in good faith may nonetheless move this court for leave to proceed on appeal in forma pauperis pursuant to the mechanism set forth in Rule 24(a)(5). Turning to Rolland’s motion, for substantially the reasons stated by the district court, we find that this appeal is not taken in good faith and that Rolland has failed to show the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal. See 28 U.S.C. § 1915(a)(3), (e)(2). Accordingly, Rolland’s motion for leave to proceed in forma pauperis is DENIED. Should Rolland wish to pursue his appeal nonetheless, he must pay the regular filing fee within 21 days of the entry of this order; if he fails to do so, the Clerk of Court is directed to dismiss his appeal for failure to prosecute. See 10th Cir. R. 42.1. . Rule 24(a)(4) requires a district" }, { "docid": "23018432", "title": "", "text": "his chüdren. As we explain infra, in his brief on appeal, Urrutia contended that the police did not prevent Ms. Thompson from attacking him. .District courts in this Circuit use a two-step analysis in evaluating in forma pauperis complaints. First, a judge evaluates the plaintiff's affidavit of poverty, construing it as a motion to proceed in forma pauperis, and determines whether the plaintiff is financially eligible to proceed without prepayment of fees. Second, the district judge assesses the complaint to determine whether it is legally frivolous. Roman, 904 F.2d at 194 n. 1. If it is not, the district judge authorizes issuance of the summons and service of the complaint. (There is no reason to think that the procedure will be any different under the new version of § 1915, although the financial and substantive considerations will differ.) Ur-rutia's in forma pauperis complaint was received in the district court on April 4, 1995. The complaint was filed by the clerk the next day. More commonly, however, both the filing of the complaint and the authorization of service of the complaint on the defendants are postponed while the magistrate judge and/or district judge consider the § 1915(a) (indigency) and (d) (frivolousness) issues together. . The individual police officers were not named in the motion. . Under 28 U.S.C. § 1915(a), an appeal may not be taken in forma pauperis \"if the trial court certifies in writing that it is not taken in good faith.\" This Court has stated that: Normally, when a litigant is granted leave to proceed in forma pauperis by the district court, this status carries over in the Court of Appeals. Fed.R.App.P. 24(a). However, if the district court dismisses the case as frivolous under 28 U.S.C. § 1915(d), the litigant must reapply to this Court to proceed in forma pauperis on appeal, since a finding of frivolousness is viewed as a certification that the appeal is not taken in good faith. 28 U.S.C. § 1915(a); Fed. R.App.P. 24(a). Oatess v. Sobolevitch, 914 F.2d 428, 430 n. 4 (3d Cir.1 990). Because the district judge dismissed the complaint as" }, { "docid": "3722941", "title": "", "text": "RICE, District Judge. Petitioner seeks permission of this court to appeal in forma pauperis from an order of the United States District Court, State of Kansas, denying him the right to file a petition for a writ of habeas corpus and to proceed therein without payment of costs. Petitioner attempted to proceed in forma pauperis in the District Court under the provisions of 28 U.S.C.A. § 832, which provides that a poor person may commence his action “upon the order of the court,” and that he may appeal to the Circuit Court of Appeals “unless the trial court shall certify in writing that in the opinion of the court such appeal or writ of error is not taken in good faith.” He was denied the right to proceed in forma pauperis in the District Court on the ground that his petition was without merit and that he should not be allowed to proceed at the expense of the government. In due time the petitioner presented to the District Court his Application for Leave to Appeal in Forma Pauperis. The District Court, after reviewing the files, denied the application and certified that the proposed appeal “is not taken in good faith, is frivolous, and is without merit.” Attached to the Petition for Leave to Appeal filed herein is a copy of the original Petition for Writ of Habeas Corpus and copies of the orders entered by the District Court. Both orders were based by the District Court solely upon the proposition that the Petition for Writ of Habeas Corpus fails to disclose that petitioner has a meritorious cause and that it presented no issue of fact upon which the petitioner is entitled to a hearing under the rule announced in Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302. A District Court is not required to permit a poor person to file a petition without payment of costs unless there is a showing of merit. Whittle v. St. Louis & San Francisco R. Co., C.C., 104 F. 286; Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35" }, { "docid": "5499238", "title": "", "text": "HICKEY, Circuit Judge. On November 15, 1966, the appellant, James R. Durham, Jr., was convicted of a violation of 18 U.S.C. § 1201. This appeal arises out of a collateral attack on that conviction under 28 U.S.C. § 2255. On October 12, 1967, the district court filed an order refusing to hold a hearing at which evidence could be introduced in support of appellant’s § 2255 motion. On October 31, 1967, the appellant filed a motion to proceed in forma pauperis. That motion was denied on November 20, 1967. On February 26, 1968, a motion was filed in this court for leave to take a delayed appeal from the original conviction. On the same date this court granted leave to appeal in forma pauper-is from the district court’s order of Oc tober 12, 1967. We also assigned counsel to prosecute the appeal. On April 9, 1968, we ordered an original and one copy of the transcript of the case at the expense of the United States. A similar request had been turned down by order of the trial court on October 16, 1967. None of the orders contain a certificate that the appeal is taken in good faith as required in 28 U.S.C. § 1915, however, a supplemental order of the trial court dated November 20, 1967, denies further consideration of a forma pauperis motion to appeal the proceedings under 28 U.S.C. § 2255. The basis for the denial is that the appeal was frivolous in nature, without merit, and not taken in good faith. Despite the many procedural errors, the matter is before us for review. Durham was convicted by a jury of kidnapping a ten year old child, and knowingly transporting her in interstate commerce for the purpose of taking indecent liberties with her person. The conviction was not appealed, although the trial court advised Durham of his right to a forma pauperis appeal under Fed.R.Crim.P. 32(a) (2). We examine the February 26, 1968, motion to grant a delayed appeal from the conviction. Fed.R.Crim.P. 37(a) (2), amended in 1966, abrogated December 4, 1967, effective July 1, 1968, provides:" }, { "docid": "22863370", "title": "", "text": "v. Ragen, 7 Cir., 146 F.2d 516; Johnson v. Hunter, 10 Cir., 144 F.2d 565, 566. This does not necessarily mean, we think, that a court must deny leave to a petitioner to file a meritless petition without payment of clerk’s fees. In the interest of orderly procedure and of keeping proper court records, it may be advisable to permit the petitioner to file his petition if it is one which the court has jurisdiction to entertain, and then to dismiss it “if satisfied that the action is frivolous or malicious.” 28 U.S.C.A. § 1915(d). But there is no reason why a respondent in a patently frivolous proceeding should be called upon to make a return or answer, or why an appeal in forma pauperis should be allowed a petitioner from an order dismissing such a proceeding or denying the relief prayed for. The District Court may, however, we think, for the sake of the record, permit the filing of a notice of appeal without prepayment of costs, even in a frivolous case, before certifying that the appeal is not taken in good faith, in order to avoid any controversy as to the time when the notice was received by the Clerk. Although no district judge likes to pass upon the correctness of his own decisions, it is his duty, if he is thoroughly convinced that there is no substantial question for review and that an appeal will be futile, to certify that the appeal sought to be taken in forma pauperis is not taken in good faith. And we will not entertain a direct application to this Court for a certificate of good faith as a basis for allowing an appeal in forma pauperis unless it clearly appears from the record submitted to us that the denial of such a certificate by the trial court was aribitrary or unwarranted. See Wells v. United States, 318 U.S. 257, 259, 63 S.Ct. 582, 87 L.Ed. 746; Johnson v. Hunter, 10 Cir., 144 F.2d 565, 566-567. We say this not to relieve ourselves of the burden of reviewing cases which have no" }, { "docid": "128469", "title": "", "text": "Appeal # 2 (1:04CV136) On April 28, 2003, Mr. Terry filed a motion with the Bankruptcy Judge for leave to proceed in forma pauperis on his appeal to this Court in Appeal # 1. The Bankruptcy Judge found that the appeal was frivolous, and denied Mr. Terry’s request to proceed in forma pauperis. On May 23, 2003, Mr. Terry moved the Bankruptcy Court for reconsideration of its denial of his request to proceed in forma pauperis. On June 12, 2003, the Bankruptcy Court granted Mr. Terry’s request for reconsideration and vacated the May 16, 2003 order in order to more fully consider Mr. Terry’s request. However, after reconsidering the request, the Bankruptcy Court again found that the appeal was frivolous and denied Mr. Terry’s request to proceed in forma pauperis. Mr. Terry appealed that decision to this Court in what has been designated as 1:04CV136 (Appeal #2). The Bankruptcy Trustee filed a Motion for Dismissal of Appeal [Document # 1]. Under 28 U.S.C. § 1915(a), “any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor.” However, “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith,” and the court shall dismiss the case if the action or appeal is “frivolous” or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915. In the present case, the Bankruptcy Court found that the appeal lacked an arguable basis in law or fact and was frivolous as a matter of law. In addition, the Bankruptcy Court certified that the appeal was not taken in good faith. After reviewing the record and the documents filed in this appeal, the Court concludes that Mr. Terry’s request to proceed in forma pauperis should be denied" }, { "docid": "13120013", "title": "", "text": "all habeas coipus applications considered by this District Court are in forma pauperis. As a matter of policy and consistent with the proper concern for an individual’s liberty, this Court permits the filing of the applications for habeas corpus in forma pauperis as a matter of course even though many actions might well have been dismissed as being frivolous. The Court of Appeals, of course, when it is called upon to review the District Court’s action, faces an entirely different administrative problem. Unlike this Court, the Court of Appeals’ determination on the merits requires the utilization of different procedures than its review of a District Court’s determination that a particular appeal is not taken in good faith because it is frivolous. In this particular case, had this Court at the outset been reviewing this case solely to determine whether or not the case was “frivolous”, within the meaning of § 1915, it would have unhesitatingly so determined. But to have placed its decision on that ground would not have advised petitioner that he should seek relief before the committing court. We therefore ruled the case on the merits in order to so advise the petitioner. The questions raised by petitioner’s petition, however, have been, in our judgment, conclusively and correctly determined by the cases cited and referred to in our Order to Show Cause dated August 13, 1962, and by the cases cited and referred to in our Memorandum and Order of September 6, 1962. In Hood v. United States, (8th Cir.), 307 F.2d 507 (not yet reported), the Court of Appeals for the Eighth Circuit dismissed an appeal from a trial court’s denial of a 28 U.S.C. § 2255 motion as frivolous on the ground that the questions raised had been ruled by two recent decisions of the Supreme Court. Consistent with the rationale of that decision, we hereby certify that petitioner’s appeal may not be taken in forma pauperis for the reason that the questions raised are plainly frivolous in that the questions raised have been conclusively determined by the cases cited, and that, therefore, the appeal can" }, { "docid": "15860473", "title": "", "text": "his objection to engage in cross-examination that constituted a statement of the prosecuting attorney’s belief in his guilt; and 4. That his constitutional rights were violated by the state trial court’s improper dismissal of a juror. The district court examined each claim, wrote an opinion setting forth its reasons in dealing with each claim, and concluded that Bedford’s motion for leave to proceed in forma pauperis “is frivolous within the meaning of 28 U.S.C. § 1915(d)” and denied him leave to proceed in that fashion. 28 U.S.C. § 1915(d) provides as follows: “The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” On appeal Redford argues that the district court committed error in failing to follow the procedure laid down by this court in Ragan v. Cox, 305 F.2d 58 (10th Cir.1962). In Ragan the district court, without stating any reasons whatsoever, denied the petitioner leave to file in forma pauperis two petitions for habeas corpus. Thereafter, the district court, without stating any reasons and without any certificate that the appeal was not taken in good faith, denied petitioner leave to appeal in forma pauper-is. In setting forth the procedure to be followed, we stated: “When a district court receives an application for leave to proceed in forma pauperis, it should examine the papers and determine if the requirements of § 1915(a) are satisfied. If they are, leave should be granted. Thereafter, if the court finds that the allegations of poverty are untrue or that the action is frivolous or malicious, it may dismiss the case but in so doing it should clearly state the grounds for such action.” 305 F.2d at 60. In several subsequent cases we have held that if there has been substantial compliance with the procedure specified in Ragan, the procedure is adequate. Thus, in Oughton v. United States, 310 F.2d 803 (10th Cir.1962) we stated: In this instance the file, which was scrutinized by the district court, has" }, { "docid": "15941731", "title": "", "text": "in forma pauperis does not exist in bankruptcy); Harris v. M.E.I. Diversified, Inc., 156 B.R. 814, 815 (Bankr.E.D.Mo.1993) (holding that creditor may not proceed in forma pauperis because § 1930 removes bankruptcy proceedings from the ambit of § 1915). On the other hand, 28 U.S.C. § 1930(b), allowing the Judicial Conference of the United States to prescribe other fees in bankruptcy cases, does not contain any language removing these fees from the operation of § 1915. Most bankruptcy courts that have addressed the § 1930 issue in published opinions hold that § 1930(a) applies only to the filing of a bankruptcy petition and does not apply to fees, as set from time to time by the Judicial Conference pursuant to § 1930(b), for other proceedings in bankruptcy. See Benoit v. Lassina (In re Lassina), 261 B.R. 614, 616 (Bankr.E.D.Pa.2001) (holding that section 1930(b) fees may be waived by bankruptcy courts); Burrell v. Letterlough (In re Burrell), 150 B.R. 369, 373 (Bankr.E.D.Va.1992) (concluding that appeal fees and costs are not explicitly excepted from waiver under the in forma pauperis statute); In re Moore, 86 B.R. 249, 251 (Bankr.W.D.Okla.1988) (holding that debt- or could proceed in forma pauperis on appeal); Weakland v. Avco Fin. Servs., Inc. (In re Weakland), 4 B.R. 114, 115 (Bankr.D.Del.1980) (concluding that debtors could proceed in forma pauperis in adversary proceeding to avoid lien); In re Palestino, 4 B.R. 721, 722 (Bankr.M.D.Fla. 1980) (explaining that section 1915 applies in all bankruptcy proceedings except the filing of an original bankruptcy petition). Thus, debtors filing new cases must pay filing fees while other parties, more incidentally involved in bankruptcy proceedings, may be able to proceed in forma pauperis. Because appeal fees are not explicitly excepted from waiver by § 1930, we conclude that we may consider the Debtor’s § 1915 request to proceed in for-ma pauperis on appeal to the United States Court of Appeals for the First Circuit. II. The Debtor’s Motion for Leave to Appeal In Forma Pauperis 28 U.S.C. § 1915 provides that a petition to proceed in forma pauperis is granted or denied at the discretion" }, { "docid": "17626517", "title": "", "text": "LEWIS, Circuit Judge. In June, 1959, appellant was found guilty after trial by jury of the offense of unlawfully uttering a forged United States Treasury check. A sentence of three years was imposed by the United States District Court for the District of Kansas to begin to run at the expiration of a period of incarceration appellant was then serving in Auburn Prison under sentence of the State of New York. Appellant is still in Auburn and has not yet begun serving his federal sentence. Although no appeal was taken from • the judgment of conviction in Kansas appellant did, in March and April of 1960, lodge with the Clerk of the Kansas District Court a series of documents attacking the validity of his conviction and the sentence imposed upon 46 enumerated grounds. A motion was made to present such claims to the District Court in forma pauperis. The trial court, considering the documents as a motion for writ of error coram nobis under the All-Writs Statute, 28 U.S.C. § 1651, and after a review of the entire record of the case, denied the motion as such and also denied the motion to proceed in that court in forma pauperis. Appellant then filed a notice of appeal and a motion asking the trial court to allow the appeal to proceed in forma pauperis. The trial court denied the motion and certified in writing that the appeal was not taken in good faith. See 28 U.S.C. § 1915(a). A subsequent motion addressed to this court sought leave to perfect the appeal in forma pauperis and was granted ex parte by a panel of this court. As presented, the instant appeal searches the correctness of the trial court’s rulings denying the petition for writ of error eoram nobis and denying leave to proceed in that court in forma pauperis. The government asserts however that the proper scope of the appeal is limited to a review of the order of the trial court refusing leave to appeal in forma pauperis and suggests that the order of this court allowing consideration of the more" }, { "docid": "23151838", "title": "", "text": "upon motions for leave to file, prosecute, or defend an action or proceeding in the district court without the prepayment of fees and costs. The differences between the provision for appeal in 28 U.S.C. § 1915(a) and for dismissal in 28 U.S.C. § 1915(d) are not material. The issues raised by the petitioner were not frivolous. While the trial court may have felt that they were without merit, the Supreme Court has made it clear that merit or lack of merit is not the test. When a district court receives an application for leave to proceed in forma pauperis, it should examine the papers and determine if the requirements of § 1915(a) are satisfied. If they are, leave should be granted. Thereafter, if the court finds that the allegations of poverty are untrue or that the action is frivolous or malicious, it may dismiss the case but in so doing it should clearly state the grounds for such action. The orders denying leave- to file in forma pauperis in district court cases Nos. 3230 H.C. and 3236 H.C. are each reversed for further proceedings in harmony with this opinion. . Roberts v. United States District Court for the Northern District of California, 339 U.S. 844, 845. 70 S.Ct. 954, 94 L.Ed. 1326; Ex parte Quirin, 317 U.S. 1, 24, 63 S.Ct. 1, 87 L.Ed. 3. . In § 1915(a) it is said that an appeal may not be taken in forma pauperis “if the trial court certifies in writing that it is not taken in good faith.” In § 1915 id) it is said that the court “may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.”" }, { "docid": "15941732", "title": "", "text": "in forma pauperis statute); In re Moore, 86 B.R. 249, 251 (Bankr.W.D.Okla.1988) (holding that debt- or could proceed in forma pauperis on appeal); Weakland v. Avco Fin. Servs., Inc. (In re Weakland), 4 B.R. 114, 115 (Bankr.D.Del.1980) (concluding that debtors could proceed in forma pauperis in adversary proceeding to avoid lien); In re Palestino, 4 B.R. 721, 722 (Bankr.M.D.Fla. 1980) (explaining that section 1915 applies in all bankruptcy proceedings except the filing of an original bankruptcy petition). Thus, debtors filing new cases must pay filing fees while other parties, more incidentally involved in bankruptcy proceedings, may be able to proceed in forma pauperis. Because appeal fees are not explicitly excepted from waiver by § 1930, we conclude that we may consider the Debtor’s § 1915 request to proceed in for-ma pauperis on appeal to the United States Court of Appeals for the First Circuit. II. The Debtor’s Motion for Leave to Appeal In Forma Pauperis 28 U.S.C. § 1915 provides that a petition to proceed in forma pauperis is granted or denied at the discretion of the court. However, the court’s discretion is limited to determinations of poverty and objective good faith. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46, 35 S.Ct. 236, 59 L.Ed. 457 (1915). Good faith is demonstrated when an applicant seeks appellate review of any issue that is not frivolous. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Thus, a determination as to whether the Debtor’s application to proceed in forma pauperis on appeal should be granted turns on two factors: (1) a showing by affidavit that he is unable to pay the filing fees, see Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40, 69 S.Ct. 85, 93 L.Ed. 43 (1948), and (2) a showing that the proposed proceedings are not frivolous or malicious, see 28 U.S.C. § 1915(e). We are satisfied that the Debtor has met the requisite showing of poverty. The Debtor’s affidavit indicates that she and her husband have a negative net cash flow of at least $200 per month." }, { "docid": "9574881", "title": "", "text": "forma pauperis treatment under 28 U.S.C. § 1915. Rather than directly appeal the district court’s rulings, appellants instead applied to this court to “compel access to” the transcript and to include it in the Appendix on appeal. After this court twice instructed appellants that “this court will not become involved in the matter of the cost of the transcript of district court proceedings,” a motions panel denied appellants’ application for access, commenting that the merits panel may revisit the issue. Appellants filed a pending “Renewed Motion for Access to the Trial Transcript and to Supplement the Record to the Merits Panel,” purportedly pursuant to this statement. As the trial judge stated in his orders denying appellants relief on this issue, appellants may seek payment of transcript fees by the United States only when specifically authorized by statute. The statutory authority for such relief is 28 U.S.C. § 1915 (“Proceedings in forma pauperis”), which gives the federal courts discretion to direct payment by the United States of the expenses of printing the record on appeal, if such printing is required by the appellate court. See 28 U.S.C. § 1915(b). Under Rowland, K & A, a professional corporation, clearly is not entitled to proceed in forma pauperis. Individuals such as Mr. Klayman must substantiate their claims of financial distress to obtain in forma pauperis treatment. Mr. Klayman has not done so. The documentation Mr. Klayman submitted in support of his claim of financial distress is insufficient to warrant taxing the Government with the considerable estimated cost of obtaining those portions of the transcript not in Baldwin’s possession. Accordingly, we deny appellants’ Renewed Motion for Access to the Transcript. In the absence of a complete trial transcript, appellants have sought to build their bias case largely on sources entirely unrelated to the proceedings below — in particular, Judge Keller’s involvement in the sanctioning of Steven Yagman, a Jewish attorney in California, and the local bar’s general assessment of Judge Keller’s skill and competence on the bench. Such sources are not relevant to the issue of whether Judge Keller exhibited bias or prejudice against" }, { "docid": "22213063", "title": "", "text": "certification of lack of good faith). Accordingly, a party who seeks in forma pauperis status and is certified by the district court as not appealing in good faith may nonetheless move this court for leave to proceed on appeal in forma pauperis pursuant to the mechanism set forth in Rule 24(a)(5). Turning to Rolland’s motion, for substantially the reasons stated by the district court, we find that this appeal is not taken in good faith and that Rolland has failed to show the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal. See 28 U.S.C. § 1915(a)(3), (e)(2). Accordingly, Rolland’s motion for leave to proceed in forma pauperis is DENIED. Should Rolland wish to pursue his appeal nonetheless, he must pay the regular filing fee within 21 days of the entry of this order; if he fails to do so, the Clerk of Court is directed to dismiss his appeal for failure to prosecute. See 10th Cir. R. 42.1. . Rule 24(a)(4) requires a district clerk to \"immediately notify the parties and the court of appeals when the district court ... certifies that the appeal is not taken in good faith.” Under Rule 24(a)(5), “[a] party may file a motion to proceed on appeal in forma pau-peris in the court of appeals within 30 days after service of the notice prescribed in Rule 24(a)(4).” . The predecessor to § 1915(a)(3) was first enacted half a century ago. Law of June 25, 1948, ch. 646, tit. 28, § 1915(a), 62 Stat. 954 (1948). Fed. R.App. P. 24 was first adopted in 1967. See 43 F.R.D. 61 (1967). Both provisions have been repeatedly amended and reenacted. We need not speculate here on the interstitial effects of these events, see, e.g., Floyd v. U.S. Postal Serv., 105 F.3d 274, 277-78 (6th Cir.1997) (holding § 1915(a)(3) precluded consideration of a Rule 24(a)(5) motion in light of § 1915’s reenactment in the Prison Litigation Reform Act of 1995), abandoned by Callihan, 178 F.3d at 803, because we are concerned at present only with our authority" }, { "docid": "17626518", "title": "", "text": "of the entire record of the case, denied the motion as such and also denied the motion to proceed in that court in forma pauperis. Appellant then filed a notice of appeal and a motion asking the trial court to allow the appeal to proceed in forma pauperis. The trial court denied the motion and certified in writing that the appeal was not taken in good faith. See 28 U.S.C. § 1915(a). A subsequent motion addressed to this court sought leave to perfect the appeal in forma pauperis and was granted ex parte by a panel of this court. As presented, the instant appeal searches the correctness of the trial court’s rulings denying the petition for writ of error eoram nobis and denying leave to proceed in that court in forma pauperis. The government asserts however that the proper scope of the appeal is limited to a review of the order of the trial court refusing leave to appeal in forma pauperis and suggests that the order of this court allowing consideration of the more general appeal without prepayment of fees was improvidently made in view of the trial court’s written certification that the appeal was not taken in good faith. The further suggestion is made that perhaps this court was not aware of the trial court's certification at the time of our order allowing an appeal in forma pauperis. In such regard we can only state that we were well aware of the certification, the basis in 28 U.S.C. § 1915(a) for the certification, and the initially attractive strength apparent in the technical procedural logic that premises the position now urged by the government. Stated simply, the government contends that this court cannot entertain a general appeal in forma pauperis when the trial court certifies in writing that the appeal is not taken in good faith unless and until we vacate the certification of the trial court as constituting an abuse of discretion. We do not believe the authority of this court to be so limited nor the compulsion of 28 U.S.C. § 1915 (a) to be such as" }, { "docid": "8133137", "title": "", "text": "or ventilation” and “the direct poisoning of SHU food.” See plaintiffs’ Affidavit and Memorandum of Law submitted in support of their Order to Show Cause and their request for T.R.O. relief. Requests to proceed in forma pauperis accompanied the complaint. Construing the complaint as one directed only at the failure to provide inmates with rule books, the district court held that plaintiffs failed to state a constitutional claim and denied leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(d). Section 1915(d) provides, in pertinent part, that “[t]he court may . .. dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Rather than directly dismissing the complaint, however, Judge Curtin directed the clerk to file the complaint without payment of fees and held that service of process would not issue without payment. He also ordered the clerk to enter a judgment to dismiss the complaint if the filing fee was not paid by February 8, 1983. On January 4, 1983, the district judge denied a subsequent motion to reconsider or in the alternative for permission to file an interlocutory appeal, and further stated that “[i]t appears to the court that the plaintiffs do not desire to pay the filing fee.” Accordingly, he directed the clerk “to file a judgment dismissing the case and then file the notice of appeal.” As in the Robles-Payne action, the State Attorney General’s office declined to waive its right to service and did not defend on this appeal. II. DISCUSSION Although the district courts herein followed slightly different procedural routes, we deem both judgments to be dismissals pursuant to 28 U.S.C. § 1915(d). It is clear from the cases cited in Judge Telesca’s decision, that he followed the practice of first granting leave to proceed in forma pauperis upon a determination that plaintiffs had satisfied the financial requirements of § 1915(a) and then, after assessing the complaint and finding it frivolous, dismissing the case under § 1915(d). Judge Curtin, on the other hand, made no finding as to whether plaintiffs had satisfied" } ]

[ { "docid": "2864915", "title": "", "text": "assessed after the subsequent hearing. Procedural Objections E-Loan also raises a procedural objection to the steps followed by the Debtor in seeking relief, arguing that Bankruptcy Rule 7001 requires an adversary proceeding to be filed because the Debtor is seeking relief relating to “a proceeding to recover money or property” or a “proceeding to obtain an injunction.” Fed. R. Bankr.P. 7001(1), (7). This is not correct. “[A] debtor may enforce a discharge under 11. U.S.C. § 524 by means of a contempt motion.” Texaco v. Sanders (In re Texaco Inc.), 182 B.R. 937, 945-46 (Bankr.S.D.N.Y.1995); see also In re Weichmann, 2001 WL 1836189, at *1, 2001 Bankr.Lexis 1797, at *3 (Bankr.N.D.Ill. Oct. 30, 2001) (holding that “a contempt order is the appropriate remedy for violations under § 524(a)(2), and that any monetary relief awardable is in the form of sanctions, rather than damages.”); In re Bock, 297 B.R. 22, 28 (Bankr.W.D.N.C. 2002) (same). This is consistent with the principle that it is unnecessary to proceed by way of adversary proceeding when re questing sanctions accompanied by damages for violation of the automatic stay under § 362 of the Bankruptcy Code. See In re Hooker Investments, Inc., 116 B.R. 375, 378 (Bankr.S.D.N.Y.1990). Conclusion For the foregoing reasons, an evidentia-ry hearing is necessary to establish whether the Respondents should be held in contempt, and if so, to determine the issues of sanctions, damages and attorney’s fees. The parties are directed to arrange an appropriate hearing date with Chambers. IT IS SO ORDERED. . The Debtor’s motion was based on violation of the automatic stay despite the fact that the discharge order had already been entered. . The Debtor released the parties from any causes of action he had or could have brought prior to the date of the Release. Additionally, the Release acknowledged that the settlement did not constitute \"an admission of guilt, liability, wrongdoing, or neglect on the part of E-Loan [and its employees] ...” (See Aff. of Debtor’s Atty., Ex. F.) . The discrepancy between the date of the letter from Peak5 (December 5th) and the date of the closing" } ]

[ { "docid": "7593187", "title": "", "text": "therefore willful. Oren violated Nicholas’s discharge by asserting three of the causes of action stated in the Complaint. The commencement of claims three and four, seeking recovery from Nicholas based upon fraudulent misrepresentations in relation to the fixing of Oren’s proof of claim and unjust enrichment as a result of such fraud, constitute the continuation of an effort to collect on Oren’s pre-petition secured claim. Oren’s sixth cause of action, alleging fraudulent misrepresentation by Nicholas relating to the alleged deed-in-lieu of foreclosure agreement, also constitutes a violation of Nicholas’ discharge, for the reasons discussed in Section F above. Accordingly, the elements necessary for a finding of civil contempt are satisfied. B. Oren’s Violation of Nicholas’s Discharge Warrants Sanctions Nicholas’s motion to hold Oren in contempt seeks actual damages, attorney’s fees and punitive damages. Bankruptcy courts can issue such relief. See Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 445 (1st Cir.2000) (“[B]ankruptcy courts across the country have appropriately used their contempt power to order monetary relief, in the form of actual damages, attorney fees, and punitive damages, when creditors have engaged in conduct that violates § 524”). Here, the actual damages alleged by Nicholas consist of his attorney fees. To obtain attorney’s fees for violations of the discharge injunction, the plaintiff must establish “that the defendant acted in bad faith or in a vexatious or oppressive manner.” In re Torres, 367 B.R. at 490; see also In re Watkins, 240 B.R. 668, 678 (Bankr.E.D.N.Y.1999). In Watkins, the court found bad faith sufficient to justify the awarding of attorney’s fees, where, after a creditor’s debt was discharged, the creditor contacted the debtors and offered to make a new loan on the condition that the debtors repay the creditor’s discharged debt. The debtors agreed, and the creditor made a loan of $4,000 in exchange for a note in excess of $8,000, which included the discharged debt. Watkins, 240 B.R. at 672-74. In Torres, the debtor sought damages for violations of the discharge injunction based on allegations that the defendant bank intentionally refused to correct erro neous information on his credit report" }, { "docid": "7593153", "title": "", "text": "Court’s findings of fact and conclusions of law to the extent required by Bankruptcy Rule 7052. Oren’s first, second, and fifth causes of action, in which he alleges that the Adversary Proceeding constituted malicious prosecution, abuse of process, libel, slander, and coercion, are core proceedings pursuant to 28 U.S.C. § 157(b)(1), because each of those causes of action arises in a case under title 11. Oren’s third and fourth causes, in which he claims that the Defendants perpetrated a fraud on the Court to induce the Court to reduce his claim in the bankruptcy case, are also core proceedings. These causes of action arise in Nicholas’s bankruptcy case, and, in substance, seek a recalculation of Oren’s claim against the Debtor. Determining the liabilities of the debtor is at the core of bankruptcy jurisdiction. 28 U.S.C. § 157(b)(2)(B); see also S.G. Phillips Constructors, Inc., 45 F.3d 702, 705 (2d Cir.1995). The Debtor’s motion to dismiss Oren’s sixth cause of action is also a core proceeding, because the Debtor seeks dismissal on the basis that the claim is barred by his discharge. Enforcement of the Debtor’s discharge is a core proceeding. See In re Nat’l Gypsum Co., 118 F.3d 1056, 1064 (5th Cir.1997) (“[A] proceeding to enforce or construe a bankruptcy court’s section 524(a) discharge injunction ... necessarily arises under title 11 ...”). Oren’s seventh and eighth causes of action, in which Harvey Bernstein, the real estate broker who was retained with court approval in Nicholas’s bankruptcy case, is alleged to have engaged in tortious interference, and to have been unjustly enriched by the court order compensating him for his services, is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). Moreover, to the extent Oren’s seventh and eighth causes of action challenge the orders of this Court, “[bjankruptcy courts retain jurisdiction to enforce and interpret their own orders.” In re Millenium Seacarriers, Inc., 419 F.3d 83, 97 (2d Cir.2005). Finally, the Debtor’s motion to hold Oren in contempt for violating § 524 arises under Title 11 and is therefore a core proceeding pursuant to 28 U.S.C. § 157(b)(1). DISCUSSION I. Defendants’" }, { "docid": "20262112", "title": "", "text": "all courts have authority to enforce compliance with their lawful orders. This inherent authority extends to statutory 'orders' such as ... the discharge injunction.” (citing In re Galvez, 119 B.R. 849, 849 (Bankr.M.D.Fla.1990))). Bankruptcy-court power in this respect is given also by § 105(a) of the Bankruptcy Code: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. 11 U.S.C. § 105(a); see also Hardy v. United States ex rel. I.R.S. (In re Hardy), 97 F.3d 1384, 1389 (11th Cir.1996) (\"Section 105 creates a statutory contempt power, distinct from the court’s inherent contempt powers in bankruptcy proceedings.”). \"While a defendant may be cited for contempt under the court's inherent powers only upon a showing of 'bad faith,’ [Creditor] may be liable for contempt under § 105 if it willfully violated the permanent injunction of § 524.” In re Hardy, 97 F.3d at 1390 (quoting Glatter v. Mroz (In re Mroz), 65 F.3d 1567, 1575 (11th Cir.1995)) (emphasis omitted). . 11 U.S.C. § 105(a) empowers the bankruptcy courts to enjoin state suits. See In re Hardy, 97 F.3d at 1389. The Anti-Injunction Act, 28 U.S.C. § 2283, does provide 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 current version of the Anti-Injunction Act, however, expanded upon the earlier version; \"[a]n exception as to Acts of Congress relating to bankruptcy was omitted and the general exception substituted to cover all exceptions.” Id. note. Hence, \"[t]he language of § 105 encompasses any type of order, whether injunctive, compensative or punitive, as long as it" }, { "docid": "7593184", "title": "", "text": "that, in equity and good conscience,” Bernstein should compensate Oren. Accordingly, Oren’s claim of unjust enrichment is dismissed. II. Debtor’s Motion to Hold Oren in Contempt The Debtor seeks to hold Oren in contempt for violating the discharge injunction by commencing and prosecuting claims against him in the State Court Action that were discharged in this bankruptcy case. The Debtor urges that this violation warrants imposition of sanctions against Oren in the form of actual damages, punitive damages, and attorney’s fees, pursuant to § 524 and § 105. For the reasons set forth below, this Court finds that Oren willfully violated Nicholas’s discharge, and that sanctions are appropriate. A. Oren Willfully Violated Nicholas’s Discharge Section 524 enjoins creditors from taking any action to collect on a debt that has been discharged. See 11 U.S.C. § 524(a)(2) (2006) (prohibiting the “commencement or continuation of an action, the employment of process, or an act to collect, recover, or offset a debt or claim that has been discharged.”) The discharge injunction lies at the heart of one of the fundamental purposes of bankruptcy law: to give the debtor a fresh start. See In re Bogdanovich, 292 F.3d 104, 107 (2d Cir.2002) (“Congress made it a central purpose of the bankruptcy code to give debtors a fresh start in life and a clear field for future effort unburdened by the existence of the old debts.”) “There is no serious question that a violation of the discharge provided in § 524(a)(2) is punishable by contempt.” In re Nassoko, 405 B.R. 515, 520 (Bankr.S.D.N.Y.2009) (citations omitted). Here, the Debtor seeks sanctions for civil contempt, which function “to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” In re Torres, 367 B.R. 478, 490 (Bankr.S.D.N.Y.2007) (quoting Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)). “[DJetermining whether a party may be held liable for civil contempt is a two part inquiry: (1) did the party know of the lawful order of the court, and (2) did the" }, { "docid": "584410", "title": "", "text": "(1st Cir.2000) (§ 105 provides a bankruptcy court with contempt power to enforce the discharge injunction). The contempt power so vested in the bankruptcy court includes the power to compensate the injured party for losses sustained, one of the powers of “civil contempt.” Id. at 445 (recognizing that bankruptcy courts have appropriately used their contempt power to award actual damages and attorney’s fees); Eck v. Dodge Chemical Co. (In re Power Recovery Systems, Inc.), 950 F.2d 978[798], 802 (1st Cir.1991) (“sanctions in a civil contempt proceeding are employed ... where appropriate, to compensate the harmed party for losses sustained”). The Respondents contend that the bankruptcy court’s contempt power does not extend to entry of punitive damages, the province of “criminal contempt”; and there is authority for that proposition in other circuits. In this circuit, however, the Court of Appeals has recognized the contempt power of the bankruptcy court as extending to awards of punitive damages. Bessette v. Avco Financial Services, Inc., 230 F.3d at 445 (“bankruptcy courts across the country have appropriately used their contempt power to order monetary relief, in the form of actual damages, attorney fees, and punitive damages, when creditors have engaged in conduct that violates § 524” (emphasis added)); In re Latanowich, 207 B.R. 326, 333 (Bankr.D.Mass.1997) (construing § 105(a) as authorizing punitive sanctions). I hold accordingly. A contempt proceeding to enforce the discharge injunction is a core proceeding within the meaning of 28 U.S.C. § 157(b), and therefore the bankruptcy court may enter appropriate orders and judgment in the matter. b. Fraud on the Court in the Bankruptcy Case: When a proceeding for redress of damages arising from fraud on the court concerns fraud on the court that occurred in the bankruptcy court and in a particular bankruptcy case, the bankruptcy court’s jurisdiction over that case includes authority under 11 U.S.C. § 105(a) to act on the motion and to fashion a remedy. The bankruptcy court’s authority under § 105(a) to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title” includes the power to insure" }, { "docid": "20262111", "title": "", "text": "case to obtain a determination of whether the creditor’s claim is of a type exempted from discharge pursuant to 11 U.S.C. § 523. Debtors did not choose option (3) because they did not — and could not — move the Florida Bankruptcy Court to reopen the Chapter 11 Case. The case would have to be reopened, if at all, by the Delaware Bankruptcy Court which had administered the case. See 11 U.S.C. § 350(b) (\"A case maybe reopened in the court in which such case was closed to administer assets, to accord relief to the debt- or, or for other cause.”). . Federal judges have inherent power under Article III of the United States Constitution to hold litigants in civil contempt for violating court orders, see Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991), such as an injunction effected by 11 U.S.C. § 524(a)(2), see, e.g., Matthews v. United States (In re Matthews), 184 B.R. 594, 598 (Bankr.S.D.Ala.1995) (\"Civil contempt power is inherent in bankruptcy courts since all courts have authority to enforce compliance with their lawful orders. This inherent authority extends to statutory 'orders' such as ... the discharge injunction.” (citing In re Galvez, 119 B.R. 849, 849 (Bankr.M.D.Fla.1990))). Bankruptcy-court power in this respect is given also by § 105(a) of the Bankruptcy Code: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. 11 U.S.C. § 105(a); see also Hardy v. United States ex rel. I.R.S. (In re Hardy), 97 F.3d 1384, 1389 (11th Cir.1996) (\"Section 105 creates a statutory contempt power, distinct from the court’s inherent contempt powers in bankruptcy proceedings.”). \"While a defendant may be cited for contempt under the court's inherent powers only" }, { "docid": "7593185", "title": "", "text": "the fundamental purposes of bankruptcy law: to give the debtor a fresh start. See In re Bogdanovich, 292 F.3d 104, 107 (2d Cir.2002) (“Congress made it a central purpose of the bankruptcy code to give debtors a fresh start in life and a clear field for future effort unburdened by the existence of the old debts.”) “There is no serious question that a violation of the discharge provided in § 524(a)(2) is punishable by contempt.” In re Nassoko, 405 B.R. 515, 520 (Bankr.S.D.N.Y.2009) (citations omitted). Here, the Debtor seeks sanctions for civil contempt, which function “to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” In re Torres, 367 B.R. 478, 490 (Bankr.S.D.N.Y.2007) (quoting Local 28 of Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 443, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)). “[DJetermining whether a party may be held liable for civil contempt is a two part inquiry: (1) did the party know of the lawful order of the court, and (2) did the defendant comply with it.” In re McKenzie-Gilyard, 388 B.R. 474, 481 (Bankr.E.D.N.Y.2007) (quoting In re Puller, 2007 WL 1811209 at *3 (Bankr.N.D.W.Va. Jun. 20, 2007)). Thus, sanctions for civil contempt may be awarded where a party knowingly violated the discharge injunction. See In re DiGeronimo, 354 B.R. 625, 642 (Bankr.E.D.N.Y.2006) (citations omitted) (holding that a violation of the discharge injunction is willful where “the creditor (1) knew that the discharge had issued, and (2) intended the actions which violated the discharge injunction.”). There can be no question that Oren knew that the Debtor’s discharge had been issued, given his active role in Nicholas’s bankruptcy, his receipt of payment under Nicholas’s plan, and his receipt of notice of the discharge. Oren has never disputed that he was aware of Nicholas’s discharge, and his continuation of the action against Nicholas, even after Nicholas moved to reopen this bankruptcy case to seek to hold Oren in contempt, removes any doubt that Oren was aware of the discharge, and that his actions in pursuing discharged claims against Nicholas were" }, { "docid": "7593186", "title": "", "text": "defendant comply with it.” In re McKenzie-Gilyard, 388 B.R. 474, 481 (Bankr.E.D.N.Y.2007) (quoting In re Puller, 2007 WL 1811209 at *3 (Bankr.N.D.W.Va. Jun. 20, 2007)). Thus, sanctions for civil contempt may be awarded where a party knowingly violated the discharge injunction. See In re DiGeronimo, 354 B.R. 625, 642 (Bankr.E.D.N.Y.2006) (citations omitted) (holding that a violation of the discharge injunction is willful where “the creditor (1) knew that the discharge had issued, and (2) intended the actions which violated the discharge injunction.”). There can be no question that Oren knew that the Debtor’s discharge had been issued, given his active role in Nicholas’s bankruptcy, his receipt of payment under Nicholas’s plan, and his receipt of notice of the discharge. Oren has never disputed that he was aware of Nicholas’s discharge, and his continuation of the action against Nicholas, even after Nicholas moved to reopen this bankruptcy case to seek to hold Oren in contempt, removes any doubt that Oren was aware of the discharge, and that his actions in pursuing discharged claims against Nicholas were therefore willful. Oren violated Nicholas’s discharge by asserting three of the causes of action stated in the Complaint. The commencement of claims three and four, seeking recovery from Nicholas based upon fraudulent misrepresentations in relation to the fixing of Oren’s proof of claim and unjust enrichment as a result of such fraud, constitute the continuation of an effort to collect on Oren’s pre-petition secured claim. Oren’s sixth cause of action, alleging fraudulent misrepresentation by Nicholas relating to the alleged deed-in-lieu of foreclosure agreement, also constitutes a violation of Nicholas’ discharge, for the reasons discussed in Section F above. Accordingly, the elements necessary for a finding of civil contempt are satisfied. B. Oren’s Violation of Nicholas’s Discharge Warrants Sanctions Nicholas’s motion to hold Oren in contempt seeks actual damages, attorney’s fees and punitive damages. Bankruptcy courts can issue such relief. See Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 445 (1st Cir.2000) (“[B]ankruptcy courts across the country have appropriately used their contempt power to order monetary relief, in the form of actual damages, attorney fees," }, { "docid": "2864894", "title": "", "text": "mechanism, but § 105 of the Bankruptcy Code plainly provides the statutory authority, as the powers granted in that section “authorize the courts to ‘issue any order, process, or judgment that is necessary or appropriate to carryout the provisions of this title.’ ” In re Thompson, 2007 WL 2406886, at *2, 2007 Bankr.Lexis 2830, at *6 (Bankr.N.D.N.Y. Aug. 21, 2007), quoting 11 U.S.C. § 105. There is no serious question that a violation of the discharge provided in § 524(a)(2) is punishable by contempt. See In re Cruz, 254 B.R. 801, 816 (Bankr.S.D.N.Y.2000), and cases cited therein. For a finding of contempt, “the burden rests with the movant to show [by clear and convincing evidence] that the offending ... entity had knowledge [actual or constructive] of the discharge and willfully violated it by continuing with the activity complained of.” Torres v. Chase Bank USA, N.A. (In re Torres), 367 B.R. 478, 490 (Bankr.S.D.N.Y.2007) (brackets in original) (internal citations omitted). There the Court stated that “[c]ompensa-tory damages, in addition to coercive sanctions, may be awarded as a sanction for civil contempt if a party willfully violates a section 524(a)(2) injunction.” 367 B.R. at 490 (internal citations omitted); see also 4 Collier on Bankruptcy ¶ 524.02[2][c] (“A creditor’s actions in violation of the discharge injunction are willful if the creditor knows the discharge has been entered and intends the actions which violated the discharge injunction.”). Attorney’s fees may also be awarded, if in addition to willfully disobeying the court order, the “party acts in bad faith, vexatiously, wantonly or for oppressive reasons.” In re Dabrowski, 257 B.R. 394, 416 (Bankr.S.D.N.Y.2001); see also In re Torres, 367 B.R. at 490-91. Sale of Discharged Debts All three parties against whom relief is sought first raise the argument that their activities did not violate the discharge injunction. E-Loan argues that it merely sold the loan, that it did not contact or otherwise pressure the Debtor, and that the Debtor has not provided a basis for a finding that it (or any of the other parties) acted knowingly. Peak5 similarly opposes the motion on the basis" }, { "docid": "1148639", "title": "", "text": "made clear that his intent was only to make a collection from assets abandoned by the bankruptcy trustee. He also felt that Williams was “on thin ice” since he had not filed a power of attorney. He did not mention in his letter to Williams that a power of attorney was needed however. Mr. Williams’ bill for services rendered to the Matthews in this matter totaled $2,733.50. It represented 24.85 hours of work at $110 per hour. The estimate for trial time was 2.5 hours. The actual trial time and time to respond to the Court’s request for case law was closer to 4.0 hours. Mr. Williams incurred $243.20 in costs directly related to the suit for fees, postage and photocopies. His work is worth $110 per hour or more. LAW The Debtors allege that the IRS’s actions are actionable (1) under 11 U.S.C. § 105 and as civil contempt, (2) under 11 U.S.C. § 362(h), (3) under 11 U.S.C. § 524 and (4) under 5 U.S.C. § 504. The Court will discuss each of these issues in order and then disclose the damages sustained by the Matthews. A. Debtors argue that the IRS is guilty of civil contempt through its actions in violating statutory injunctions. Civil contempt, pursuant to Fed.R.Bankr.P. 9020(b) may be dealt with by a bankruptcy judge “after a hearing on notice.” The trial in this adversary case constitutes “a hearing on notice.” Civil contempt power is inherent in bankruptcy courts since all courts have authority to enforce compliance with their lawful orders. In re Galvez, 119 B.R. 849 (Bankr.M.D.Fla.1990). This inherent authority extends to statutory “orders” such as the automatic stay and the discharge injunction. Kimco Leasing, Inc. v. Knee, 144 B.R. 1001 (N.D.Ind.1992). A request for relief from civil contempt is often coupled, as in this case, with a request for relief under 11 U.S.C. § 105(a). Section 105(a) empowers a bankruptcy court to “issue any order ... or judgment that is necessary or appropriate to carry out the provisions of this title.” This section coupled with the inherent contempt power of courts gives a" }, { "docid": "15295048", "title": "", "text": "the automatic stay has been violated, 11 U.S.C. § 362(k)(l) provides that “an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(k)(l). “Courts within the First Circuit have concluded that the words ‘shall recover’ indicate that ‘Congress intended that the award of actual damages, costs and attorney’s fees be mandatory upon a finding of a willful violation of the stay.’ ” Vázquez Laboy v. Doral Mortgage Corp. (In re Vázquez Laboy), 416 B.R. 325, 332 (1st Cir. BAP 2009) (quoting In re Heghmann, 316 B.R. at 405 n. 9) (emphasis in original), rev’d in part and vacated in part, No. 09-9022, 2011 WL 2119316 (1st Cir. May 27, 2011). It is the Debtor’s burden to establish by a preponderance of the evidence that he or she suffered actual damages as a result of the stay violation. In re Vázquez Laboy, 416 B.R. at 332; In re Heghmann, 316 B.R. at 403-404. Unlike 11 U.S.C. § 362, no specific provision exists in the Bankruptcy Code to provide redress for violations of the discharge injunction. Nonetheless, “ ‘[a] bankruptcy court is authorized to invoke § 105 to enforce the discharge injunction imposed by § 524 and order damages for the [debtor] ... if the merits so require.’ ” Pratt v. Gen. Motors Acceptance Corp. (In re Pratt), 462 F.3d 14, 17 (1st Cir.2006) (quoting Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 445 (1st Cir.2000)); see also Lumb v. Cimenian (In re Lumb), 401 B.R. 1, 6 (1st Cir. BAP 2009). “Section 105(a) confers ‘statutory contempt powers’ which ‘inherently include the ability to sanction a party.’ ” Fatsis v. Braunstein (In re Fatsis), 405 B.R. 1, 7 (1st Cir. BAP 2009) (quoting Ameriquest Mortgage Co. v. Nosek (In re Nosek), 544 F.3d 34, 43-44 (1st Cir.2008)). Courts have recognized two types of sanctions. Civil contempt sanctions are designed to coerce the contemnor into compliance with a court order or to compensate a harmed party for losses" }, { "docid": "6753747", "title": "", "text": "after Sears learned about the Judge Hillman’s order in Iappini. On April 9,1997, Sears withdrew the memorandum of law it had filed in response to the order to show cause and informed the Court that “the company no longer intends to contest the Court’s order to show cause.” (Motion to Withdraw Memorandum of Law in Response to Court’s Order to Show Cause, ¶ 2.) JURISDICTION The purpose of this proceeding is to determine whether the actions taken by Sears constituted violations of the discharge order and, if so, to compensate the Debtor for his damages, to ensure Sears’s future compliance with the discharge order, and, as appropriate, to enforce the discharge by entry of punitive damages. The bankruptcy discharge is central to the relief afforded by the Bankruptcy Code. A proceeding to enforce the discharge is a core proceeding. 28 U.S.C. § 157(b)(2)(0) (“Core proceedings include ... proceedings affecting ... the adjustment of the debtor-creditor ... relationship.); In re Schatz, 122 B.R. 327 (N.D.Ill.1990) (proceeding to enforce discharge order and adjudicate a violation thereof falls within bankruptcy court’s core jurisdiction); In re Thomas, 184 B.R. 237, 240 (Bankr.M.D.N.C.1995) (proceeding for damages and attorney’s fees for violation of discharge injunction is core proceeding). Therefore, this Court may hear and determine this matter and enter an appropriate order. 28 U.S.C. § 157(b)(1) (“Bankruptcy judges may hear and determine ... all core proceedings arising under title 11 ... and may enter appropriate orders and judgments”); In re Monarch Capital Corp., 173 B.R. 31, 35-38 (D.Mass.1994) (contempt proceeding to enforce order resolving a core proceeding is itself a core proceeding and is reviewed by way of direct appeal under 28 U.S.C. § 158, not by de novo review under 28 U.S.C. § 157(c)(1) and F.R.Bankr.P. 9033), aff'd Monarch Life Ins. Co v. Ropes & Gray, 65 F.3d 973 (1st Cir.1995). The Court’s authority to enforce the discharge order is set forth in 11 U.S.C. § 105(a). The Code does not provide an express remedy that is specific to the discharge. Section 105(a) clearly provides the court with power to impose remedial sanctions and to" }, { "docid": "6753748", "title": "", "text": "within bankruptcy court’s core jurisdiction); In re Thomas, 184 B.R. 237, 240 (Bankr.M.D.N.C.1995) (proceeding for damages and attorney’s fees for violation of discharge injunction is core proceeding). Therefore, this Court may hear and determine this matter and enter an appropriate order. 28 U.S.C. § 157(b)(1) (“Bankruptcy judges may hear and determine ... all core proceedings arising under title 11 ... and may enter appropriate orders and judgments”); In re Monarch Capital Corp., 173 B.R. 31, 35-38 (D.Mass.1994) (contempt proceeding to enforce order resolving a core proceeding is itself a core proceeding and is reviewed by way of direct appeal under 28 U.S.C. § 158, not by de novo review under 28 U.S.C. § 157(c)(1) and F.R.Bankr.P. 9033), aff'd Monarch Life Ins. Co v. Ropes & Gray, 65 F.3d 973 (1st Cir.1995). The Court’s authority to enforce the discharge order is set forth in 11 U.S.C. § 105(a). The Code does not provide an express remedy that is specific to the discharge. Section 105(a) clearly provides the court with power to impose remedial sanctions and to ensure prospective compliance with the discharge injunction. By its grant of authority to take any action necessary to enforce a court order, this Court also reads that section as authorizing punitive sanctions, which are simply another mechanism by which the court enforces its orders. Brown v. Ramsay (In re Ragar), 3 F.3d 1174, 1179 (8th Cir.1993) (“An order of criminal contempt, no less than one of civil contempt, is necessary or appropriate to enforce the order for whose violation it is imposed.”). Punitive sanctions, though imposed as punishment after the fact, nonetheless enforce court orders by their very availability and the threat of their imposition for violations of such orders. To the extent that the Court’s authority herein rests solely on § 105(a), this matter may be viewed as a contempt proceeding, partly civil and, to the extent it involves punitive damages, partly criminal. The First Circuit Court of Appeals has held that the bankruptcy courts are vested with contempt powers. Eck v. Dodge Chemical Company (In re Power Recovery Systems, Inc.), 950 F.2d 798," }, { "docid": "17570757", "title": "", "text": "341 meeting, and attendant notice of the automatic stay, the docket indicates that it received a copy of the Discharge Order. The second page of the Discharge Order entered in Iskric’s case, in part, states: The discharge prohibits any attempt to collect from the debtor a debt that has been discharged. For example, a creditor is not permitted to contact a debtor by mail, phone, or otherwise, to file or continue a lawsuit, to attach wages or other property, or to take any other action to collect a discharged debt from the debtor ... (emphasis added). As discussed above, Congress provided a specific statutory remedy for an individual debtor who is damaged by a violation of the automatic stay. 11 U.S.C. § 362(k). There is no specific statutory counterpart in § 524 which provides for the allowance of damages for a violation of the discharge injunction. The absence of a statutory position does not necessarily mean that Iskric is without a remedy for CFS’ violation of the discharge injunction. The First Circuit has noted that “bankruptcy courts across the country have appropriately used their statutory contempt power to order monetary relief, in the form of actual damages, attorney fees, and punitive damages, when creditors have engaged in conduct that violates the § 524.” Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 445 (1st Cir.2000). Section 105 of the Bankruptcy Code provides, in part, “the court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title....” 11 U.S.C. § 105(a). As a bankruptcy judge, I have exercised restraint in utilizing § 105 as a basis for my decisions. I do conclude that it is appropriate to utilize § 105 to, in effect, provide Iskric a remedy for CFS’ violation of the discharge injunction. Bankruptcy courts have the inherent power to enforce compliance with their lawful orders. In re Protarga, Inc., 329 B.R. 451, 479 (Bankr.D.Del.2005); In re Cont'l Airlines, Inc., 236 B.R. 318, 331 (Bankr.D.Del.1999). There are three prima facie elements for a finding of contempt: (1) a valid court" }, { "docid": "8321763", "title": "", "text": "or recovers a fund for the benefit of others; (2) when a losing party acts in bad faith, vexatiously, wantonly, or' for oppressive reasons; or (3) when a defendant wilfully disobeys a court order. Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). There is no express statutory authority for attorneys fees applicable to this ease; Section 524 of the Bankruptcy Code does not provide for attorneys fees as a sanction for violating the discharge injunction, as does Section 362(h) for violating the automatic stay. Further, it does not appear that an exception to the American rule for attorneys fees applies. The Debtor did not recover a fund for the benefit of others. No bad faith, vexatious or wanton actions, or oppressive motivations have been shown to this court to justify an award of attorneys’ fees. What has been shown is that the defendants acted to collect on a judgment to which they believed they were entitled. Defendant Harvey Weeks may have acted deliberately to collect the debt; but it has not been shown he acted with actual knowledge of the wording of the discharge order, that he acted deliberately to violate the court’s order, or that his conduct rises to the level of bad faith, or wanton or oppressive action. As for the third exception to the American rule, attorneys fees have been awarded in contempt actions brought for violations of the permanent injunction of discharge. Matter of Miller, 81 B.R. 669 (Bankr.M.D. Fla.1988) and In re Miller, 89 B.R. 942 (Bankr.M.D.Fla.1988); Behrens v. Woodhaven Ass’n., 87 B.R. 971 (Bankr.N.D.Ill. 1988); In re Roush, 88 B.R. 163 (Bankr.S.D.Ohio 1988); In re Barbour, 77 B.R. 530 (Bankr.E.D.N.C.1987). The authority for such an exercise of contempt power by the bankruptcy courts has been variously found: (1) in the inherent power of all courts, including bankruptcy courts, to exercise civil contempt power to enforce compliance with their lawfully issued orders; (2) in the statutory authority granted implicitly by 11 U.S.C. §§ 105(a) and (c), particularly with respect to core proceedings under 28 U.S.C. §" }, { "docid": "2864893", "title": "", "text": "for a finding of civil contempt, damages, sanctions, and attorney’s fees for the alleged violation of the discharge order in the Debtor’s Chapter 7 case. Section- 727 provides, in relevant part, that “a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter.... ” 11 U.S.C. § 727(b). As the Court said in Green v. Welsh, 956 F.2d 30, 33 (2d Cir.1992), “The discharge of a debt pursuant to § 727 triggers the operation of § 524, which protects the debtor from any personal liability on the debt.” Section 524 of the Bankruptcy Code provides: [a] discharge in a case under this title ... operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived.... 11 U.S.C. § 524(a)(2). Section 524 does not include an explicit enforcement mechanism, but § 105 of the Bankruptcy Code plainly provides the statutory authority, as the powers granted in that section “authorize the courts to ‘issue any order, process, or judgment that is necessary or appropriate to carryout the provisions of this title.’ ” In re Thompson, 2007 WL 2406886, at *2, 2007 Bankr.Lexis 2830, at *6 (Bankr.N.D.N.Y. Aug. 21, 2007), quoting 11 U.S.C. § 105. There is no serious question that a violation of the discharge provided in § 524(a)(2) is punishable by contempt. See In re Cruz, 254 B.R. 801, 816 (Bankr.S.D.N.Y.2000), and cases cited therein. For a finding of contempt, “the burden rests with the movant to show [by clear and convincing evidence] that the offending ... entity had knowledge [actual or constructive] of the discharge and willfully violated it by continuing with the activity complained of.” Torres v. Chase Bank USA, N.A. (In re Torres), 367 B.R. 478, 490 (Bankr.S.D.N.Y.2007) (brackets in original) (internal citations omitted). There the Court stated that “[c]ompensa-tory damages, in addition to coercive sanctions, may be awarded as" }, { "docid": "1148640", "title": "", "text": "these issues in order and then disclose the damages sustained by the Matthews. A. Debtors argue that the IRS is guilty of civil contempt through its actions in violating statutory injunctions. Civil contempt, pursuant to Fed.R.Bankr.P. 9020(b) may be dealt with by a bankruptcy judge “after a hearing on notice.” The trial in this adversary case constitutes “a hearing on notice.” Civil contempt power is inherent in bankruptcy courts since all courts have authority to enforce compliance with their lawful orders. In re Galvez, 119 B.R. 849 (Bankr.M.D.Fla.1990). This inherent authority extends to statutory “orders” such as the automatic stay and the discharge injunction. Kimco Leasing, Inc. v. Knee, 144 B.R. 1001 (N.D.Ind.1992). A request for relief from civil contempt is often coupled, as in this case, with a request for relief under 11 U.S.C. § 105(a). Section 105(a) empowers a bankruptcy court to “issue any order ... or judgment that is necessary or appropriate to carry out the provisions of this title.” This section coupled with the inherent contempt power of courts gives a bankruptcy court authority to determine all of the issues raised by the Matthews. In re Galvez, supra at 850. In this case, the IRS’s actions did violate the automatic stay and the discharge injunction. The IRS was properly noticed of the bankruptcy filing, filed a proof of claim on March 15,1993, and consented to an order declaring the Debtors’ tax debts dischargea-ble. After all this, the IRS still proceeded to send levy notices to the Debtors and seized two tax refunds. It can hardly be said the IRS’s actions were not knowing. The IRS knew of the bankruptcy and the discharge of the debts and still proceeded against the Matthews property. Mistake or computer error or good intentions is not an excuse when the problems continue for two years and at least eight different actions are taken by the IRS. Therefore, this action was in contempt of the automatic stay and the discharge injunction. B. The Debtors allege that the IRS actions are actionable under 11 U.S.C. § 362(h) which states: An individual injured by" }, { "docid": "7593154", "title": "", "text": "is barred by his discharge. Enforcement of the Debtor’s discharge is a core proceeding. See In re Nat’l Gypsum Co., 118 F.3d 1056, 1064 (5th Cir.1997) (“[A] proceeding to enforce or construe a bankruptcy court’s section 524(a) discharge injunction ... necessarily arises under title 11 ...”). Oren’s seventh and eighth causes of action, in which Harvey Bernstein, the real estate broker who was retained with court approval in Nicholas’s bankruptcy case, is alleged to have engaged in tortious interference, and to have been unjustly enriched by the court order compensating him for his services, is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). Moreover, to the extent Oren’s seventh and eighth causes of action challenge the orders of this Court, “[bjankruptcy courts retain jurisdiction to enforce and interpret their own orders.” In re Millenium Seacarriers, Inc., 419 F.3d 83, 97 (2d Cir.2005). Finally, the Debtor’s motion to hold Oren in contempt for violating § 524 arises under Title 11 and is therefore a core proceeding pursuant to 28 U.S.C. § 157(b)(1). DISCUSSION I. Defendants’ Motion for Judgment on the Pleadings Defendants assert two bases for judgment on the pleadings: first, they contend that certain of Oren’s causes of action are barred by the doctrines of res judicata and collateral estoppel; and second, they argue that Oren has failed to allege facts sufficient to state a claim with respect to any of the causes of action asserted in the Complaint. A motion for judgment on the pleadings is governed by Bankruptcy Rule 7012(b), which incorporates Rule 12(c). In reviewing a motion for judgment on the pleadings, the Court is required to accept all factual allegations of the Complaint as true and make all inferences in favor of the non-moving party. Cleveland v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir.2006). A motion to dismiss under Rule 12(c) is analyzed under the same standard as a Rule 12(b)(6) motion to dismiss. Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”" }, { "docid": "17570758", "title": "", "text": "“bankruptcy courts across the country have appropriately used their statutory contempt power to order monetary relief, in the form of actual damages, attorney fees, and punitive damages, when creditors have engaged in conduct that violates the § 524.” Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 445 (1st Cir.2000). Section 105 of the Bankruptcy Code provides, in part, “the court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title....” 11 U.S.C. § 105(a). As a bankruptcy judge, I have exercised restraint in utilizing § 105 as a basis for my decisions. I do conclude that it is appropriate to utilize § 105 to, in effect, provide Iskric a remedy for CFS’ violation of the discharge injunction. Bankruptcy courts have the inherent power to enforce compliance with their lawful orders. In re Protarga, Inc., 329 B.R. 451, 479 (Bankr.D.Del.2005); In re Cont'l Airlines, Inc., 236 B.R. 318, 331 (Bankr.D.Del.1999). There are three prima facie elements for a finding of contempt: (1) a valid court order existed; (2) a party had knowledge of the order; and, (3) the party disobeyed the order. Ambiguities are resolved in favor of the party charged with contempt. F.T.C. v. Lane Labs-USA, Inc., 624 F.3d 575, 582 (3d Cir.2010); John T. ex rel. Paul T. v. Delaware County Intermediate Unit, 318 F.3d 545, 552 (3d Cir.2003). Iskric’s Discharge Order of October 15, 2012, was a valid court order. I have already found that CFS had knowledge of the Discharge Order, and that by failing to terminate the bench warrant, it violated the Discharge Order. I find that CFS has been continuously in contempt of the Discharge Order entered in Iskric’s case. I conclude that I am authorized to award appropriate damages for the violation of the discharge injunction. Such sanctions may include attorney’s fees, as well as compensatory and punitive damages. In re Meyers, 344 B.R. 61, 66 (Bankr.E.D.Pa.2006); In re Foltz, 324 B.R. 250, 253 (Bankr.M.D.Pa.2005); In re Ray, 262 B.R. 580 n. 10 (Bankr.D.Me.2001). D. Damages for Violation of the Automatic Stay There" }, { "docid": "12625195", "title": "", "text": "the acts of the creditor.”); In re Armstead, No. 96-10592, 1997 WL 860677 *7 (Bankr.E.D.Pa. Nov.7,1997) (same). Sanctions The Debtor seeks an order from the Court holding Enterprise and Mr. D’Orazio in contempt pursuant to § 105 and § 524(a)(2) and awarding actual damages, costs, attorneys’ fees and punitive damages to the Debtor. The Debtor provides no case law in support of an award of sanctions and presents no evidence on the issue of actual damages. The Second Circuit Court of Appeals has repeatedly required courts to specify the source of their authority to impose sanctions. In re Ames Department Stores, Inc., 76 F.3d 66, 70 (1996). Section 524(a)(2) provides for injunctive relief and does not expressly provide for the recovery of actual damages, attorneys’ fees or punitive damages. Watkins v. Guardian Loan Co. (In re Watkins), 240 B.R. 668, 680 (Bankr.E.D.N.Y.1999). Section 524(a)(2) provides: (a) A discharge in a case under this title— (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived. However, bankruptcy courts have found that “violation of the injunction is punishable by contempt.” Mickens v. Waynes-boro Dupont Employees Credit Union, Inc. (In re Mickens), 229 B.R. 114, 118 (Bankr.W.D.Va.1999) (citing In re Holland, 21 B.R. 681 (Bankr.N.D.Ind.1982)); see also Watkins, 240 B.R. at 680 (citations omitted). A finding of civil contempt can entitle the aggrieved party to be compensated for all expenses, including attorneys’ fees. Mickens, 229 B.R. at 118-19. Furthermore, under § 105, this Court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of the Bankruptcy Code. 11 U.S.C. § 105. Attorneys’ fees have been awarded in bankruptcy cases within the Second Circuit for a violation of the § 524 injunction as follows: (1) when a defendant willfully disobeys a court order, and (2) when a losing party acts in bad faith, vexatiously, wantonly, or for oppressive reasons. Watkins, 240 B.R." } ]

[ { "docid": "22618162", "title": "", "text": "case is whether § 51 is satisfied by the designation by a foreign corporation of an agent for service of process, in conformity with the law of a state in which suit is brought against it in one of the federal courts for that state. The jurisdiction of the federal courts — their power to adjudicate — is a grant of authority to them by Congress and thus beyond the scope of litigants to confer. But the locality of a law suit — the place where judicial authority may be exercised — though defined by legislation relates to the convenience of litigants and as such is subject tp their disposition. This basic difference between the court’s power and the litigant’s convenience is historic in the federal courts. After a period of confusing deviation it was firmly reestablished in General Investment Co. v. Lake Shore Ry. Co., 260 U. S. 261, and Lee v. Chesapeake & Ohio Ry. Co., ibid. 653, over-ruling Ex parte Wisner, 203 U. S. 449, and qualifying In re Moore, 209 U. S. 490. All the parties may be non-residents of the district where suit is brought. Lee v. Chesapeake & Ohio Ry. Co., supra. Section 51 “merely accords to the defendant a .personal privilege respecting the venue, or place of suit, which he may assert, or may waive, at his election.” Commercial Ins. Co. v. Stone Co., 278 U. S 177, 179. • Being a privilege, it may be lost. It may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct. Commercial Ins. Co. v. Stone Co., supra. Whether such surrender of a personal immunity be conceived negatively as a waiver or positively as a consent to be sued, is merely an expression of literary preference. ' The essence of the matter is that courts affix to conduct consequences as to place of suit consistent with the policy behind § 51, which is “to save defendants from inconveniences to which they might be subjected if they could be compelled to answer in any district, or wherever" } ]

[ { "docid": "23594367", "title": "", "text": "the district court set aside the award of the panel of arbitrators adverse to Tamari, which was entered on June 21, 1976, and affirmed by the Appeals Committee of the CBOT on January 25, 1977. That case is still pending in the district court. . The Federal Arbitration Act provides in pertinent parts as follows: Sec. 3. Stay of proceedings where issue therein referable to arbitration. — If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which the suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. Sec. 4. Failure to arbitrate under agreement — Petition to United States court having jurisdiction for order to compel arbitration— Notice and service thereof — Hearing and determination. — A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure [Rules, part 1], The court shall hear the' parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order\" directing the parties to proceed to arbitration in" }, { "docid": "14688517", "title": "", "text": "§ 3. Stay of proceedings where Issue therein referable to arbitration If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. § 4. Failure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; ... hearing and determination A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement____ The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement____ If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of" }, { "docid": "11812560", "title": "", "text": "States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. Section 4 provides in relevant part: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.... If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury" }, { "docid": "10665215", "title": "", "text": "a law suit — the place where judicial authority may be exercised — though defined by legislation relates to the convenience of litigants and as such is subject to their disposition. This basic difference between the court's power and the litigant's convenience is historic in the federal courts. This distinction between the court's power to adjudicate and the place where that authority may be exercised must always be recognized. It has two important consequences. Because venue is for the convenience of litigants it is a personal privilege of the defendants and can be waived by them. In this respect it is similar to jurisdiction over the person of defendants, which also can be waived, but unlike jurisdiction of the subject matter, which cannot be waived by the parties. The other consequence is that if the statutory rules on venue are not followed, and objection is made on the ground of improper venue, the action cannot be heard in that district, even though the court may have jurisdiction over the subject matter and over the defendants. 15 Charles Alan Wright, et al., Federal Practice & Procedure § 3801 (2d ed.1986) (quoting Neirbo Co. v. Bethlehem Shipbuilding Coip., 308 U.S. 165, 167-68, 60 S.Ct. 153, 84 L.Ed. 167 (1939)) (footnotes, further quotation omitted). .More fully, 9 U.S.C. § 4 provides in relevant part: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in a manner provided for in such agreement.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings," }, { "docid": "7822200", "title": "", "text": "extent as other contracts. 9 U.S.C. § 2 provides, in pertinent part: A written provision in ... a contract ... to settle by arbitration a controversy arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for revocation of any contract. . Section 3 of the FAA provides, in part: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action.... .Section 4 of the FAA provides, in part: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States District Court which, save for such agreement, would have jurisdiction under Title 28, in a civil action ... of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in a manner provided for in such agreement.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall make an order directing the parties to proceed with arbitration in accordance with the terms of the agreement ... . Courts also have jurisdiction when enforcement of an arbitration award is sought. Olick, 151 F.3d at 136. Upon a motion to enforce an award, the court's jurisdiction is limited to confirming, vacating, or modifying the award pursuant to the narrow grounds available in 9 U.S.C. §§ 9-11. . To obtain preliminary injunctive relief in an arbitrable case, the party must demonstrate: (1) that it is likely to succeed on the merits in the arbitration proceeding; (2) that it will be irreparably harmed" }, { "docid": "10665195", "title": "", "text": "(noting “[e]ven restrictive venue provisions can be waived”); see also 15 Charles Alan Wright, et al., Federal Practice and Procedure § 3813 (noting party can waive venue provided by restrictive, as well as general, venue provisions). Further, treating these FAA provisions as venue provisions makes sense in light of the fact that the FAA does not itself confer subject matter jurisdiction. See Moses H. Cone Mem’l Hosp., 460 U.S. at 26 n. 32, 103 S.Ct. 927; Nukem, Inc., 400 F.3d at 829. And in fact, an earlier provision of § 4 addresses the need for a jurisdictional basis independent of the FAA, indicating that a party seeking to compel arbitration may do so in “any United States district court which, save for such [arbitration] agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties.” Finally, § 4 serves the purposes venue statutes traditionally serve; that is, it “refers to locality, the place where a lawsuit should be heard.” 15 Charles Alan Wright, Federal Practice & Procedure, § 3801. For these reasons, we conclude that Ansari’s holding that a district court does not have authority to compel arbitration in another district is a statement addressing venue under the FAA. And the parties in this case have waived any objection to venue because they failed to raise the issue in the district court. See generally Stjemholm v. Peterson, 83 F.3d 347, 349 (10th Cir.1996) (noting parties can waive objection to venue by failing to raise the issue in timely manner before district court); 15 Charles Alan Wright, et al., Federal Practice & Procedure, § 3826. C. Whether the district court erred in granting Reynolds’s motion to compel arbitration of the parties’ dispute. Turning to the merits of this appeal, Image argues that the district court erred in compelling the parties to arbitrate their dispute pursuant to the 1994 agreement. We disagree. 1. Standard of review This court reviews the district court’s decision on a motion to compel arbitration de novo, employing the same" }, { "docid": "773334", "title": "", "text": "If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. 9 U.S.C. § 4 reads as follows: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue." }, { "docid": "715717", "title": "", "text": "to be arbitrated states a federal question is based on the jurisdictional language of § 4 itself, see infra Part II.A; the same language does not readily support a finding of federal question jurisdiction over a § 3 cause of action. We, therefore, conclude that the petitioners have abandoned the issue of whether the district court erred in dismissing their § 3 cause of action. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989) (stating that passing references to issues are insufficient to raise a claim for appeal, and such issues are deemed abandoned). .Section 4 of the FAA provides: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. .. .The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.... If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.... If the jury find that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof. . The petition also alleged that \"[t]o the extent that this Court does not have federal question jurisdiction with" }, { "docid": "16916850", "title": "", "text": "Act provides, in relevant part: A parly aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. 9 U.S.C. § 4. . The Arbitration Act does not provide that the district court loses venue if the arbitration proceeds in another judicial district. See, e.g., Apex Plumbing Supply, Inc. v. U.S. Supply Co., 142 F.3d 188, 191-93 (4th Cir.1998); Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698, 706 (2d Cir.1985). We have no occasion to address whether other state or federal courts could have provided Kidder Peabody with similar relief. It suffices to note that once venue was established in regard to institution of the lawsuit, see Minnesota Mining & Mfg. Co. v. Eco Chem., Inc., 757 F.2d 1256, 1264 (Fed.Cir.1985), the district court did not lose venue because the parties arbitrated elsewhere. . In numerous pointed statements to a representative of Liddle & Robinson in two hearings, the district court made clear its view that the facts supported an award of attorneys’ fees whether the proper standard was recklessness or had faith. . Liddle & Robinson's assertion that the record contains no proof that Kidder Peabody actually \"mcurred” these costs (that is, actually paid its ' counsel for services rendered) is belied by, a certificate filed by Kidder Peabody's counsel stating that" }, { "docid": "13290951", "title": "", "text": "No. 3-72-Civ-264 (D.Minn., filed Feb. 9, 1973). The question of whether arbitrability is a matter solely for the arbitrators, however, was not raised by appellant-Amtrak in its original complaint or at any other time at the trial stage, and is therefore not properly before us. We express no opinion on this issue. Of. note 6 infra. . For a scholarly dissertation on the history of judicial attitudes towards the enforcement of arbitration agreements, see Judge Jerome Frank’s opinion in Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 982-985 (2d Cir. 1942). . 9 U.S.C. § 4 provides : A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five day’s notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party" }, { "docid": "22541593", "title": "", "text": "United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” 9 U. S. C. §3 (emphasis added). Section 4 addresses the converse situation, in which a party breaches an arbitration agreement not by filing a lawsuit but rather by refusing to submit to arbitration: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. . . . The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” (Emphasis added.) The Act then turns its attention to the covered arbitration proceedings themselves, treating the arbitration forum as an extension of the federal courts. Section 7, for instance, provides that the fees for witnesses “shall be the same as the fees of witnesses before masters of the United States courts”; it adds that if a witness neglects a summons to appear at an arbitration hearing, “upon petition the United States district court for the district in which such arbitrators . . . are sitting may compel the attendance of such person ... or punish said person ... for contempt in" }, { "docid": "14873369", "title": "", "text": "writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. 9 U.S.C. § 4 of the FAA provides: § 4. Failure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; notice and service thereof; hearing and determination A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such" }, { "docid": "16916849", "title": "", "text": "& Robinson and that in so doing it did not abuse its discretion, and we affirm. . In its order of March 23, 1994, which consolidated the first and second actions, the district court again directed the parties to \"notify the Court once arbitration is completed as to what further proceedings in this Court are appropriate.” . Section 3 of the Arbitration Act provides: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. 9 U.S.C. § 3. . Section 4 of the Arbitration Act provides, in relevant part: A parly aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. 9 U.S.C. § 4. . The Arbitration Act does not provide that the district court loses venue if the arbitration proceeds" }, { "docid": "10665216", "title": "", "text": "15 Charles Alan Wright, et al., Federal Practice & Procedure § 3801 (2d ed.1986) (quoting Neirbo Co. v. Bethlehem Shipbuilding Coip., 308 U.S. 165, 167-68, 60 S.Ct. 153, 84 L.Ed. 167 (1939)) (footnotes, further quotation omitted). .More fully, 9 U.S.C. § 4 provides in relevant part: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in a manner provided for in such agreement.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. . Section 9 provides, in relevant part: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was" }, { "docid": "10665214", "title": "", "text": "v. Pub. Interest Corp., 171 F.3d 1265, 1269-70 (11th Cir.1999); see also Gener-Villar, 417 F.3d at 203-04 (reaffirming that First Circuit has adopted Second Circuit's analysis). . Ansari further held that a district court is also without authority to compel arbitration in its own district if that would contravene the forum-selection provisions in the arbitration agreement. See 414 F.3d at 1219-20. That aspect of Ansari is not at issue in this case because neither party argues that the district court should have compelled arbitration in Colorado, contrary to their 1994 agreement. . Image did contest the motion to compel arbitration generally, but it did not raise this particular challenge to the district court's authority to compel arbitration. . Venue is sometimes confused with jurisdiction. [However,] the two concepts are quite different. As the Supreme Court put it in a leading case: The jurisdiction of the federal courts — their power to adjudicate — is a grant of authority to them by Congress and thus beyond the scope of litigants to confer. But the locality of a law suit — the place where judicial authority may be exercised — though defined by legislation relates to the convenience of litigants and as such is subject to their disposition. This basic difference between the court's power and the litigant's convenience is historic in the federal courts. This distinction between the court's power to adjudicate and the place where that authority may be exercised must always be recognized. It has two important consequences. Because venue is for the convenience of litigants it is a personal privilege of the defendants and can be waived by them. In this respect it is similar to jurisdiction over the person of defendants, which also can be waived, but unlike jurisdiction of the subject matter, which cannot be waived by the parties. The other consequence is that if the statutory rules on venue are not followed, and objection is made on the ground of improper venue, the action cannot be heard in that district, even though the court may have jurisdiction over the subject matter and over the defendants." }, { "docid": "23426203", "title": "", "text": "application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration, (emphasis added). . 9 U.S.C. § 4: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be an issue, the court shall proceed summarily to the trial thereof____ If the jury find that an agreement for arbitration was made in writing and that there-is'a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof. (emphasis added). . 9 U.S.C. § 206: A court having jurisdiction under this chapter may direct that arbitration be held in accordance with the agreement at any place therein provided for, whether that place is within or without the United States. Such court may also appoint arbitrators in accordance with the" }, { "docid": "23594368", "title": "", "text": "— Petition to United States court having jurisdiction for order to compel arbitration— Notice and service thereof — Hearing and determination. — A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure [Rules, part 1], The court shall hear the' parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order\" directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure [Rules, part 1], or may specially call a jury for that purpose. If the jury find that" }, { "docid": "14222183", "title": "", "text": "proceed to arbitration. . The following arbitration provision was incorporated by reference in the Charter Party: “New York Produce Exchange Arbitration Clause: Should any dispute arise between Owners and the Charterers, the matter in dispute shall be referred to three persons at New York, one to. be appointed by each of the parties hereto, and the third by the two so chosen; their decision or that of any two of them, shall be final, and for the purpose of enforcing any award, this agreement may be made a rule of the Court. The Arbitrators shall be commercial men.” . The relevant portions of 9 U.S.C. § 4 are as follows: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order direefing that such arbitration proceed in the manner provided for in such agreement. * * * The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. * * * ” . The phrase “failure, neglect, or refusal” was included in the first line of 9 U.S.C. § 4, see supra note 2, primarily to assure that the remedy which Congress was affording would not be available before there had been a demand to arbitrate and a refusal. We have construed the phrase narrowly as it is used elsewhere in the section, see World Brilliance Corp. v. Bethlehem Steel Co., 342 F.2d 362 (2 Cir. 1965). . Historically, as well as under the federal statute, the law has envisioned a distinction between the entire contract between the parties, on the one hand, and the arbitration clause of the contract" }, { "docid": "23031450", "title": "", "text": "the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court[.] . 9 U.S.C. § 3 provides: § 3. Stay of proceedings where issue therein referable to arbitration If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. . Section 4 of the Arbitration Act provides in pertinent part: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the" }, { "docid": "13387478", "title": "", "text": "purposes of 28 U.S.C. § 1332, and Jain’s royalty claim raises no federal question beyond arbitration. Chapter 2 thus demarcates the beginning and the end of our authority in this case. Both Jain and de Méré concede that we cannot refer this matter to arbitration unless the district court has the authority to order arbitration to proceed in a particular place. Chapter 2 offers two potential statutory bases for compelling arbitration in this case. First, § 206 provides that any court with jurisdiction under chapter 2 “may direct that arbitration be held in accordance with the agreement at any place therein provided for; whether that place is within or without the United States. Such court may also appoint arbitrators in accordance with the provisions of the agreement.” 9 U.S.C. § 206. Because the contract between Jain and de Méré does not identify an arbitration site, § 206 does not allow a court to grant Jain’s motion to compel arbitration. See Bauhinia Corp. v. China Nat. Machinery & Equipment Import & Export Corp., 819 F.2d 247, 250 (9th Cir.1987). Second, § 208 indicates that “Chapter 1 applies to actions and proceedings brought under [chapter 2] to the extent that [chapter 1] is not in conflict with this chapter or the Convention as ratified by the United States.” Chapter 1, which contains the general provisions regarding arbitration, allows that: A party aggrieved by the alleged failure, neglect, or refusal of another party to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. ... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the" } ]

[ { "docid": "22606411", "title": "", "text": "515-516 (Blackmun, J., dissenting); id., at 523-524 (Rehnquist, J., dissenting). We said in Reid v. Georgia, 448 U. S. 438 (1980) (per curiam), “there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.” Id., at 441. Indeed, Terry itself involved “a series of acts, each of them perhaps innocent” if viewed separately, “but which taken together warranted further investigation. ” 392 U. S., at 22; see also Cortez, supra, at 417-419. We noted in Gates, 462 U. S., at 243-244, n. 13, that “innocent behavior will frequently provide the basis for a showing of probable cause,” and that “[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” That principle applies equally well to the reasonable suspicion inquiry. We do not agree with respondent that our analysis is somehow changed by the agents’ belief that his behavior was consistent with one of the DEA’s “drug courier profiles.” Brief for Respondent 14-21. A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a “profile” does not somehow detract from their evidentiary significance as seen by a trained agent. Respondent also contends that the agents were obligated to use the least intrusive means available to verify or dispel their suspicions that he was smuggling narcotics. Id., at 12-13, 21-23. In respondent’s view, the agents should have simply approached and spoken with him, rather than forcibly detaining him. He points to the statement in Florida v. Royer, supra, at 500 (opinion of White, J.), that “the in vestigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” That statement, however, was directed at the length of the investigative stop, not at whether the police had a less intrusive means to verify their suspicions before" } ]

[ { "docid": "16173731", "title": "", "text": "arguments and denied the motion to suppress. Arvizu then entered a conditional guilty plea, under which he reserved the right to appeal the denial of his motion to suppress. This appeal followed. 2. Legal Background In order to satisfy the Fourth Amendment’s strictures, an investigatory stop may be made only if the officer in question has “a reasonable suspicion supported by articulable facts that criminal activity may be afoot....” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal quotation omitted) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In determining whether reasonable suspicion exists, we must take into account the totality of the circumstances. Sokolow, 490 U.S. at 7-8, 109 S.Ct. 1581 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). At the same time, however, factors that have so little probative value that no reasonable officer would rely on them in deciding to make an investigative stop must be disregarded. Gonzalez-Rivera v. INS, 22 F.3d 1441, 1446 (9th Cir.1994). Although the level of suspicion required for a brief investigatory stop is less demanding than that required to establish probable cause, the Fourth Amendment requires an objective justification for such a stop. Sokolow, 490 U.S. at 7, 109 S.Ct. 1581. Thus, the Supreme Court has held that reasonable suspicion does not exist where an officer can articulate only “an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” Illinois v. Wardlow, —— U.S.-,-, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Rather, reasonable suspicion exists only when an officer is aware of specific, articu-lable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Salinas, 940 F.2d 392, 394 (9th Cir.1991). In turn, particularized suspicion means a reasonable suspicion that the particular person being stopped has committed, or is about to commit, a crime. Cortez, 449 U.S. at 418, 101 S.Ct. 690. At times, conduct that" }, { "docid": "6228465", "title": "", "text": "omitted). A Terry stop allows police to pursue a limited investigation when they lack information necessary to establish probable cause to arrest. Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Reasonable suspicion requires more than an “inchoate and unparticularized suspicion or hunch.” U.S. v. Elmore, 482 F.3d 172, 178 (2d Cir.2007) (citations omitted). “[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868. “Like probable cause, reasonable suspicion is determined based on the totality of the circumstances.” U.S. v. Elmore, 482 F.3d at 179. “In determining whether [an] officer acted reasonably in such circumstances due weight must be given ... to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868. D. Probable Cause to Arrest Law enforcement officers possess probable cause to arrest when at the moment of arrest, “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); see also United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990) (“[p]robable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested”). “Probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts.” United States v. Cruz, 834 F.2d 47, 50-51 (2d Cir.1987). The concept concerns “ ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317," }, { "docid": "10534582", "title": "", "text": "with out-of-state license plates, driving on a little-used highway commonly used by alien and drug smugglers, where passengers in back seat crouched down when headlights illuminated them), with Martin, 15 F.3d at 945 (upholding early evening stop on New Mexico’s Highway 185, despite vehicle’s in-state license plates, given extensive additional surrounding facts). Contrary to Lopez-Martinez’s contention, “[t]he concept of reasonable suspicion, like probable cause, is not ‘readily, or even usefully, reduced to a neat set of legal rules,’ ” Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983)), and we decline his invitation to proclaim an ironclad formula. To be sure, an officer’s specific articulable facts, when viewed in isolation, will often comport with general notions of innocent travel rather than criminal activity. Roads situated adjacent to an international border facilitate legitimate traffic. There is nothing inherently suspect about a van or station wagon utilizing such a thoroughfare. •Our task, however, is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious. Rather, the reasonable suspicion calculus turns on whether the specific articulable facts, when viewed together through the lens of a reasonable law enforcement officer, justified a brief roadside detention to determine whether the vehicle contained undocumented aliens. See Brignoni-Ponce, 422 U.S. at 884-885, 95 S.Ct. at 2582; see also Terry, 392 U.S. at 22-23, 88 S.Ct. at 1880-81 (acknowledging that “a series of acts, each of them perhaps innocent in itself, but which taken together war ranted further investigation”); Sokolow, 490 U.S. at 9, 109 S.Ct. at 1586 (“Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.”); Gates, 462 U.S. at 244 n. 13, 103 S.Ct. at 2335 n. 13 (“[I]nnocent behavior frequently will provide the basis for a showing of probable cause.... In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree" }, { "docid": "7700011", "title": "", "text": "“drug smuggling profile,” and cannot be said to have had reasonable suspicion. This last argument is entirely without merit. Whitted was selected for search not because of his resemblance to a smuggling profile, but because a one-day lookout specific to him had been entered into TECS. There was never any drug smuggling profile in evidence or relied on by the Court or the customs officers; the level of suspicion was based on the specific relevant facts known to the customs officers who searched Whitted’s cabin. As the Supreme Court has instructed, “ ‘the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” Sokolow, 490 U.S. at 10, 109 S.Ct. 1581 (quoting Illinois v. Gates, 462 U.S. 213, 243-244, n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1989)). Viewed in their entirety, the facts here support the conclusion that the customs officers reasonably suspected Whitted of criminal activity. In the present case, customs officer Dasant found the information in TECS suspicious and chose to search Whitted’s cabin based upon it. By drawing on his particular expertise, he evaluated the information and drew inferences that created reasonable suspicion of drug smuggling. Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (permitting officers “to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person’ ”); see also Brown v. Texas, 443 U.S. 47, 52 n. 2, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (observing that a trained investigator may be “able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer”). His training and three years experience as a canine enforcement officer doing similar work allowed him to draw inferences from “objective facts, meaningless to the untrained,” and substantiate his suspicions. United States v. Cortez, 449 U.S. 411, 419, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see also Smith, 273 F.3d at 634-35 (finding reasonable suspicion on similar facts where passengers had taken a cruise bound for a drug source country and" }, { "docid": "2329950", "title": "", "text": "1879. The Court then set forth the now familiar reasonable suspicion standard: “the police must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. at 1880. Without doubt, reasonable suspicion is “a quantum of proof less demanding than probable cause.” Id. at 21-22, 88 S.Ct. at 1879-80. Terry also made it clear that courts would rely on an objective standard in assessing whether a reasonable person in command of all the available facts would feel that the stop was justified. Id. (citing Beck, 379 U.S. at 96-97, 85 S.Ct. at 1228-29). “The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. In determining whether there is reasonable suspicion for a Terry stop, inferences may be drawn from the officer’s own experience in conjunction with the facts of which he is aware. United States v. Boden, 854 F.2d 983, 992 (7th Cir.1988) (citing United States v. Borgs, 766 F.2d 304, 308 (7th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986)). Since Terry was decided, several attempts have been made at formulating more specifically the requirements of reasonable suspicion. In United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989), the Court stated that reasonable suspicion entails “ ‘some minimal level of objective justification’ for making a stop” — that is, something more than an “ ‘inchoate and un-particularized suspicion or “hunch” ’ ” but less than the level of suspicion required for probable cause (citations omitted). In United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981), the Court said: [T]he essence of all that has been written is that the totality of the circumstances— the whole picture — must be taken into account. ... The process does not deal with hard certainties, but with probabilities. Long before the law" }, { "docid": "3131747", "title": "", "text": "462 U.S. 696, 708, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); United States v. White, 890 F.2d 1413, 1416 (8th Cir.1989), cert. denied, - U.S. -, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). Reasonable suspicion must derive from more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. For a Terry stop to be valid, the police must point to particular facts and inferences rationally drawn from those facts that, when viewed under the totality of the circumstances and in light of the officer’s experience, create a reasonable suspicion of criminal activity. United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989); United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989). “[T]he relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Sokolow, 490 U.S. at 10, 109 S.Ct. at 1587 (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983)). Thus, a series of acts that appear innocent, when viewed separately, may warrant further investigation when viewed together. Id. “[Cjonduct typical of a broad category of innocent people provides a weak basis for suspicion.” Crawford, 891 F.2d at 681; see also Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam). Because Weaver felt free to leave when the officers first questioned him, that encounter was consensual and did not constitute a seizure. Florida v. Royer, 460 U.S. 491, 497-508, 103 S.Ct. 1319, 1323-30, 75 L.Ed.2d 229 (1983) (plurality). It was only when Hicks told Weaver that he intended to seize Weaver’s bags that a seizure for Fourth Amendment purposes occurred. United States v. Harvey, 946 F.2d 1375, 1377 (8th Cir.1991); United States v. McKines, 933 F.2d 1412, 1423 (8th Cir.) (en banc), cert. denied, - U.S.-, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). See also United States v. Galvan, 953 F.2d 1098, 1102-03 (8th Cir.1992). Our decision therefore turns on" }, { "docid": "12174510", "title": "", "text": "investigation of suspicious behavior solely because that behavior might also have an innocent explanation. See Terry, 392 U.S. at 23, 88 S.Ct. 1868. For that reason, a stop conducted in the face of ambiguity is permissible so long as it remains sufficiently probable that the observed conduct suggests unlawful activity. See Cortez, 449 U.S. at 418, 101 S.Ct. 690 (“The process does not deal with hard certainties, but with probabilities.”). The “relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), quoting Illinois v. Gates, 462 U.S. 213, 243-44 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). By this reasoning, Officer Johnson would not have been justified in stopping the car here merely because it had a temporary registration tag that might have been phony. But after he and the dispatcher had both checked the relevant database and found no record of the car’s registration in Indiana, he had a reasonable suspicion that justified this stop. An officer need not be absolutely certain; without specifying mathematical probabilities, the degree of suspicion needed to justify a traffic stop is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than that needed for probable cause. See Sokolow, 490 U.S. at 7,109 S.Ct. 1581. Officer Johnson had learned that the registration information on Miranda-Soto-longo’s car did not appear in the database specifically designed for the purpose of verifying that information. He had also observed that the registration tag could easily have been a home-made forgery. In his view, these facts, taken together, meant there was a distinct possibility that the car was either unregistered or stolen. We agree. Although it turned out that the car was neither, Officer Johnson had the reasonable suspicion needed to justify his initial detention of the defendant in the traffic stop. That does not mean we would necessarily uphold such a stop on a different record. For example, as other courts have reasoned," }, { "docid": "23337615", "title": "", "text": "and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” 379 U.S. at 91, 85 S.Ct. at 225-26 (citing Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168,171,4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 175-76,69 S.Ct. 1302,1310-11, 93 L.Ed. 1879 (1949)). See also Dunaway v. New York, 442 U.S. 200,208 n. 9,99 S.Ct. 2248,2254 n. 9, 60 L.Ed.2d 824 (1979); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). Probable cause “is a fluid concept — turning on the assessment of probabilities in particular factual contexts— not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983). Thus, “[i]n dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. at 175, 69 S.Ct. at 1310. See also Illinois v. Gates, 462 U.S. at 231, 103 S.Ct. at 2328; Gerstein v. Pugh, 420 U.S. at 121, 95 S.Ct. at 866-867; United States v. Covelli, 738 F.2d 847, 853 (7th Cir.), cert. denied, — U.S.-, 105 S.Ct. 211, 83 L.Ed.2d 141 (1984); United States v. Watson, 587 F.2d 365, 368 (7th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1055, 59 L.Ed.2d 95 (1979). In making a determination of probable cause, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Illinois v. Gates, 462 U.S. at 244 n. 13, 103 S.Ct. at 2335 n. 13. In the present case, it was reasonable for the well-trained and experienced CPD officers to believe, based upon the available facts, circumstances, and information, that the armed and dangerous fleeing felon was a young Hispanic in his twenties by the" }, { "docid": "15459618", "title": "", "text": "standards). That is because these standards are all “commonsense, nontechnical conceptions ... not readily, or even useful ly, reduced to a neat set of legal rules.” Id. at 695-96, 116 S.Ct. 1657 (internal quotation marks omitted) (cautioning that probable cause and reasonable suspicion “are not ‘finely-tuned standards,’ comparable to the standards of proof beyond a reasonable doubt or ... by a preponderance of the evidence” (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))). Rather, they are “fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed.” Id. at 696, 116 S.Ct. 1657 (collecting cases). Thus, the Supreme Court has ruled only that “probable cause to search is demonstrated where the totality of circumstances indicates a ‘fair probability that [the thing to be seized] will be found in a particular place.’ ” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (emphasis added) (quoting Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. 2317). Meanwhile, reasonable suspicion — a concept generally associated with investigative stops — has been held to require more than a “hunch,” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and to be satisfied when “specific and articulable facts ... taken together with rational inferences from those facts,” id. at 21, 88 S.Ct. 1868, provide detaining officers with 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) (emphasis added) (internal quotation marks omitted); see Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (describing reasonable-suspicion standard as “not high”); United States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014) (observing that reasonable-suspicion standard “is less than probable cause, requiring only facts sufficient to give rise to a reasonable suspicion that criminal activity ‘may be afoot’ ” (quoting Terry v. Ohio, 392 U.S. at 30, 88 S.Ct. 1868)). Precisely because reasonable suspicion is a concept so closely associated with investigative stops, we do not here assume" }, { "docid": "15906333", "title": "", "text": "profile, he selected those manifests which, on the basis of his training and experience, appeared suspicious. See Suppression Hearing Transcript (“Tr.”) 19-21. We thus have no occasion to consider whether the correspondence of a suspect’s conduct to a pre-estab-lished “profile” would alter our analysis. Cf. United States v. Sokolow, — U.S. -, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1 (1989) (“We do not agree with respondent that our analysis is somehow changed by the agents’ belief that his behavior was consistent with one of the DEA’s ‘drug courier profiles.’ ”). In order for a police intrusion to be supportable under Terry, it must be based on “specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880. The suspicion must be based on more than an “inchoate and unparticular-ized suspicion or ‘hunch’ ” of wrongdoing, id. at 27, 88 S.Ct. at 1883, and must be supported by “specific, objective facts.” Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). Although the terms used “to capture the elusive concept” of reasonable suspicion “are not self-defining,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981), the Supreme Court has made clear that we are to look to “ ‘the totality of the circumstances — the whole picture,’ ” to determine whether the facts, taken together, amount to reasonable suspicion. Sokolow, — U.S. -, 109 S.Ct. at 1585 (quoting Cortez, 449 U.S. at 417, 101 S.Ct. at 694). See also New Jersey v. T.L.O., 469 U.S. at 341, 105 S.Ct. at 742. The appropriate level of suspicion is “considerably less than proof of wrongdoing by a preponderance of the evidence,” Sokolow, — U.S. -, 109 S.Ct. at 1585, and is, quite obviously, “less demanding” than the showing required for probable cause, i.e., “ ‘a fair probability that contraband or evidence of a crime will be found.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2323, 76 L.Ed.2d 527 (1983)). We" }, { "docid": "23099746", "title": "", "text": "exists as follows: The standard of articulable justification required by the fourth amendment for an investigative, Terry-type seizure is whether the police officers were aware of “particularized, objective facts which, taken together with rational inferences from those 'facts, reasonably warrant[ed] suspicion that a, crime [was] being committed.” United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983); see also Terry, 392 U.S. at 20-21, 88 S.Ct. at 1879-80. In assessing whether the requisite degree of suspicion exists, we must determine whether the facts collectively establish reasonable suspicion, not whether each particular fact establishes reasonable suspicion. “[T]he totality of the circumstances—the whole picture—must be taken into account.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). We may consider any added meaning certain conduct might suggest to experienced officers trained in the arts of observation and crime detection and acquainted with operating modes of criminals. See United States v. Wallraff, 705 F.2d 980, 988 (8th Cir.1983). It is not necessary that the behavior on which reasonable suspicion is grounded be susceptible only to an interpretation of guilt, id.; however, the officers must be acting on facts directly relating to the suspect or the suspect’s conduct and not just on a “hunch” or on circumstances which “describe a very broad category of predominantly innocent travelers.” Reid v. Georgia, 448 U.S. [438] at 440-41, 100 S.Ct. [2752] at 2754 [65 L.Ed.2d 890]; United States v. Sokolow, 831 F.2d 1413 (9th Cir.1987), [rev’d on other grounds, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ]. United States v. Campbell, 843 F.2d 1089, 1093 (8th Cir.1988); see also United States v. Green, 52 F.3d 194, 198 (8th Cir.1995); Dawdy, 46 F.3d at 1427; Bloomfield, 40 F.3d 910, 919 & n.10. In United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Supreme Court observed that factors consistent with innocent travel can, when taken together, give rise to reasonable suspicion. Sokolow, 490 U.S. at 10, 109 S.Ct. at 1587; see United States v. Hoosman, 62 F.3d 1080, 1081 (8th Cir.1995); Bloomfield, 40" }, { "docid": "16173732", "title": "", "text": "F.3d 1441, 1446 (9th Cir.1994). Although the level of suspicion required for a brief investigatory stop is less demanding than that required to establish probable cause, the Fourth Amendment requires an objective justification for such a stop. Sokolow, 490 U.S. at 7, 109 S.Ct. 1581. Thus, the Supreme Court has held that reasonable suspicion does not exist where an officer can articulate only “an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” Illinois v. Wardlow, —— U.S.-,-, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Rather, reasonable suspicion exists only when an officer is aware of specific, articu-lable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Salinas, 940 F.2d 392, 394 (9th Cir.1991). In turn, particularized suspicion means a reasonable suspicion that the particular person being stopped has committed, or is about to commit, a crime. Cortez, 449 U.S. at 418, 101 S.Ct. 690. At times, conduct that may be entirely innocuous when viewed in isolation may nevertheless properly be considered in determining whether or not reasonable suspicion exists. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citations and footnotes omitted) (citing Illinois v. Gates, 462 U.S. 213, 243-44, n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Put another way, “conduct that is not necessarily indicative of criminal activity may, in certain circumstances, be relevant to the reasonable suspicion calculus.” United States v. Montero-Camargo, 208 F.3d 1122, 1130 (9th Cir.2000) (en banc); Wardlow, — U.S. at ——, 120 S.Ct. at 677. At the same time, innocuous conduct does not justify an investigatory stop unless other information or surrounding circumstances of which the police are aware, considered together with the otherwise innocent conduct, provides sufficient reason to suspect that criminal activity either has occurred or is about to take place. Guam v. Ichiyasu, 838 F.2d 353, 355 (9th Cir.1988). In all circumstances, law enforcement officials are entitled to assess the facts in light of their experience. Brignoni-Ponce, 422 U.S." }, { "docid": "22930185", "title": "", "text": "and its occupants might be related to the marijuana field and, thus, implicated in a drug offense, may have increased Roy’s reasonable suspicion and incentive to ascertain whether the occupants were involved in marijuana cultivation. This suspicion was consistent with his flashlight search of the vehicle while the highway patrolman guarded Courson and her companions. The Supreme Court has held that an officer violates no Fourth Amendment right by shining a flashlight into a car because no legitimate expectation of privacy exists in a vehicle interior, which may be viewed by passersby or police officers. Texas v. Brown, 460 U.S. 730, 740-41, 103 S.Ct. 1535, 1542-43, 75 L.Ed.2d 502 (1983) (plurality opinion). We also note that even a search of the vehicle would have been valid because the Supreme Court has held that an investigative Terry stop can extend to the passenger compartment of an automobile in the absence of probable cause to arrest. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983); United States v. Aldridge, 719 F.2d 368, 372 (11th Cir.1983); see United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1 (1989) (The Supreme Court has found that \" ‘innocent behavior will frequently provide the basis for a showing of probable cause,’ and that ‘[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.’ That principle applies equally well to the reasonable suspicion inquiry.” (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983)). . Even if the occupants did not hear Roy’s instruction to exit the vehicle, we note that their failure to exit as instructed was reasonable cause for some concern regarding their cooperation and, thus, influenced his subsequent actions. . The Court previously had rejected a permissible time limitation for a Terry stop: We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless," }, { "docid": "3131746", "title": "", "text": "currency. Hicks obtained a warrant and searched both of Weaver’s bags. One of the bags contained more than six pounds of crack cocaine. Weaver moved to suppress all physical evidence obtained from his person and baggage. Following a hearing, the district court denied the motion. Weaver entered a conditional guilty plea, reserving the right to appeal the denial of the suppression motion. The district court sentenced Weaver to 151 months’ imprisonment, supervised release of five years, a fine of ten thousand dollars, and a special assessment. This appeal followed. II. Weaver contends that the law enforcement officers did not have a reasonable, articulable suspicion of criminal activity and thus violated his Fourth Amendment right to be free from unreasonable searches and seizures. Police may, without a warrant, briefly stop and ask questions of a person whom they reasonably suspect of criminal activity. Terry v. Ohio, 392 U.S. 1, 20-23, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968). Detention of a person’s luggage in an airport must satisfy the same Terry standards. United States v. Place, 462 U.S. 696, 708, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); United States v. White, 890 F.2d 1413, 1416 (8th Cir.1989), cert. denied, - U.S. -, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). Reasonable suspicion must derive from more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. For a Terry stop to be valid, the police must point to particular facts and inferences rationally drawn from those facts that, when viewed under the totality of the circumstances and in light of the officer’s experience, create a reasonable suspicion of criminal activity. United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989); United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989). “[T]he relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Sokolow, 490 U.S. at 10, 109 S.Ct. at 1587 (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317," }, { "docid": "22930186", "title": "", "text": "368, 372 (11th Cir.1983); see United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1 (1989) (The Supreme Court has found that \" ‘innocent behavior will frequently provide the basis for a showing of probable cause,’ and that ‘[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.’ That principle applies equally well to the reasonable suspicion inquiry.” (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983)). . Even if the occupants did not hear Roy’s instruction to exit the vehicle, we note that their failure to exit as instructed was reasonable cause for some concern regarding their cooperation and, thus, influenced his subsequent actions. . The Court previously had rejected a permissible time limitation for a Terry stop: We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation. Place, 462 U.S. at 709 n. 10, 103 S.Ct. at 2646 n. 10. .Although decided subsequent to May, 1985, this circuit has found that an investigative stop that lasted approximately fifty minutes to be reasonable for a Terry investigative detention. United States v. Hardy, 855 F.2d 753, 761 (11th Cir.1988), cert. denied, 489 U.S. 1019, 109 S.Ct. 1137, 103 L.Ed.2d 198 (1989). Most of this time was spent awaiting assistance and not questioning the two defendants, initially stopped for speeding. This court concluded that “the doubts raised by the length of the detention are not sufficient for us to find that the stop violated the fourth amendment.” Id. . An investigatory stop requires \"specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1879. In contrast, probable cause" }, { "docid": "21600600", "title": "", "text": "This court has defined an investigatory stop as “a brief seizure that must be supported by reasonable suspicion, that is[,] ‘specific and articulable facts, which taken together with rational inferences from these facts reasonably warrant an intrusion.’ ” United States v. Zukas, 843 F.2d 179, 181 (5th Cir.1988), cert. denied, 490 U.S. 1019, 109 S.Ct. 1742, 104 L.Ed.2d 179 (1989), quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880. The Supreme Court has been even more specific: The officer, of course, must be able to articulate something more than an “inchoate and unparticularized suspicion or ‘hunch’.” The Fourth Amendment requires “some minimal level of objective justification” for making the stop. That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means “a fair probability that contraband or evidence of a crime will be found,” and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citations omitted). To determine whether officers Staha and Thompson had reasonable suspicion to stop Holloway, we must consider the “totality of the circumstances,” meaning that “[bjoth factors — quantity and quality [of information relied upon] — are considered in the ‘totality of the circumstances — the whole picture,’ United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695 [66 L.Ed.2d 621] (1981), that must be taken into account when evaluating whether there is reasonable suspicion.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). Factors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion in the minds of experienced officers such as Staha and Thompson. See Sokolow, 490 U.S. at 9, 109 S.Ct. at 1586-87. Moreover, “[t]he reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.” Id. at 11, 109 S.Ct. at 1587. The totality of information available to officers Staha and" }, { "docid": "21608192", "title": "", "text": "We review de novo the legal issue of whether Condelee’s detention violated the fourth amendment. See United States v. Hernandez, 854 F.2d 295, 297 (8th Cir.1988). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” Id. at 30, 88 S.Ct. at 1884. The police may detain luggage briefly where there is reasonable suspicion that the luggage contains narcotics. United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). The Supreme Court has required that an officer “be able to articulate something more than an ‘inchoate and unpartic-ularized suspicion or hunch.’ ” United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). The fourth amendment requires “some minimal level of objective justification” to support a Terry stop. INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). The existence of reasonable suspicion is determined by the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981). The Supreme Court has recognized that there could be “circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot,” Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam), and, therefore, facts consistent with innocent travel taken together may amount to reasonable suspicion if they have probative value (i.e., sufficient to warrant consideration). Sokolow, 109 S.Ct. at 1586. The relevant inquiry is the degree of suspicion that attaches to particular types of noncriminal acts. Id. at 1587. Whether certain facts viewed as a whole establish reasonable suspicion must be determined by viewing them in light of a law enforcement officer’s experience and familiarity with the practices of narcotics couriers. United States" }, { "docid": "15906334", "title": "", "text": "2640, 61 L.Ed.2d 357 (1979). Although the terms used “to capture the elusive concept” of reasonable suspicion “are not self-defining,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981), the Supreme Court has made clear that we are to look to “ ‘the totality of the circumstances — the whole picture,’ ” to determine whether the facts, taken together, amount to reasonable suspicion. Sokolow, — U.S. -, 109 S.Ct. at 1585 (quoting Cortez, 449 U.S. at 417, 101 S.Ct. at 694). See also New Jersey v. T.L.O., 469 U.S. at 341, 105 S.Ct. at 742. The appropriate level of suspicion is “considerably less than proof of wrongdoing by a preponderance of the evidence,” Sokolow, — U.S. -, 109 S.Ct. at 1585, and is, quite obviously, “less demanding” than the showing required for probable cause, i.e., “ ‘a fair probability that contraband or evidence of a crime will be found.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2323, 76 L.Ed.2d 527 (1983)). We view the facts from the perspective of an experienced officer, who because of his experience may be “able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.” Brown, 443 U.S. at 52 n. 2, 99 S.Ct. at 2641 n. 2. Accord Cortez, 449 U.S. at 418, 101 S.Ct. at 695 (“a trained officer draws inferences and makes deductions— inferences and deductions that might well elude an untrained person”); U.S. v. Mendenhall, 446 U.S. 544, 563, 100 S.Ct. 1870, 1882, 64 L.Ed.2d 497 (Powell, J., concurring); Terry, 392 U.S. at 33, 88 S.Ct. at 1886. “Among the circumstances that can give rise to reasonable suspicion are the agent’s knowledge of the methods used in recent criminal activity and the characteristics of persons engaged in such illegal practices.” Mendenhall, 446 U.S. at 563, 100 S.Ct. at 1882 (Powell, J., concurring). Thus, to the extent that the Amtrak agent relied on his knowledge of “the modes or patterns of operation of certain kinds of lawbreakers,” our analysis should take this" }, { "docid": "22232942", "title": "", "text": "States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal quotation omitted) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Like probable cause determinations, the reasonable suspicion analysis is “not ‘readily, or even usefully, reduced to a neat set of legal rules’” and, also like probable cause, takes into account the totality of the circumstances. Sokolow, 490 U.S. at 7-8, 109 S.Ct. 1581 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Although the level of suspicion required for a brief investigatory stop is less demanding than that for probable cause, the Fourth Amendment nevertheless requires an objective justification for such a stop. See id. at 7, 109 S.Ct. 1581. As a result, the officer in question “must be able to articulate more than an ‘inchoate and unparticu-larized suspicion’ or ‘hunch’ of criminal activity.” Illinois v. Wardlow, — U.S. -,-, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Rather, reasonable suspicion exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion. See United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Salinas, 940 F.2d 392, 394 (9th Cir.1991). The requirement of particularized suspicion encompasses two elements. See Cortez, 449 U.S. at 418, 101 S.Ct. 690. First, the assessment must be based upon the totality of the circumstances. Id. Second, that assessment must arouse a reasonable suspicion that the particular person being stopped has committed or is about to commit a crime. See id.; see Terry v. Ohio, 392 U.S. at 21 n. 18, 88 S.Ct. 1868 (“[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence”). Accordingly, we have rejected profiles that are “likely to sweep many ordinary citizens into a generality of suspicious appearance.... ” United States v. Rodriguez, 976 F.2d 592, 595-96 (9th Cir.1992) (concluding that the factors cited in the case-namely, a Hispanic" }, { "docid": "23402672", "title": "", "text": "deputies must have had “a reasonable suspicion supported by articulable facts that criminal activity ‘may [have] be[en] afoot.’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. at 1884). “Reasonable suspicion” is “more than an inchoate and unparticularized suspicion or hunch.” Id. (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883) (internal quotations omitted). It is a concept that “is not ‘readily, or even usefully, reduced to a neat set of legal rules.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983)). In determining whether a reasonable suspicion existed, we must consider the “totality of the circumstances.” Id. at 8, 109 S.Ct. at 1585; United States v. Odum, 72 F.3d 1279, 1284 (7th Cir.1995). In the end, the analytical process requires a practical determination; it “does not deal with hard certainties, but with probabilities.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). We must reach “a common sense conclusion” as to whether the articulable facts to which the deputies point reasonably would “raise a suspicion that the particular individual[s] being stopped [were] engaged in wrongdoing.” Id, Although we defer to findings of historical fact and “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers,” we review de novo whether the officers had reasonable suspicion to detain the appellants. Ornelas v. United States, — U.S. -, -, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). Deputies Hurrle and Lent articulated four facts that made them suspect Mr. Solis, may have been involved in criminal activity: (1) He had a two-door vehicle, a “target” vehicle; (2) His vehicle had a license plate from Florida, a source state; (3) His vehicle was parked near an airport and an interstate; and (4) A criminal history check revealed that he had a suspended driver’s license and an arrest or conviction for smuggling some type of contraband into a Florida jail. We begin by" } ]

[ { "docid": "23603944", "title": "", "text": "U.S.C. § 2241. The ordinary vehicle for a federal prisoner to seek habeas relief is 28 U.S.C. § 2255, under which such a prisoner may have his sentence vacated or set aside. A writ of habeas corpus under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction. Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir.1997); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n. 5 (2d Cir.1991). Consequently, appellant’s petition to expunge the Bureau’s disciplinary sanctions from his record, including the loss of good time credits, as a challenge to the execution of his sentence rather than the underlying conviction, is properly brought via an application for a writ under § 2241. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (federal inmate’s challenge to loss of good time credits is properly brought under § 2241 because it is a challenge to “an action affecting the fact or duration of the petitioner’s custody”); Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 758-59 (3d Cir.1996) (prisoner’s challenge to loss of good time credits following disciplinary proceeding brought pursuant to § 2241); cf. Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir.1999) (holding that prisoner may bring § 1983 action, rather than habeas petition, when, as in the case where there is not a loss of good time credits, prisoner challenges disciplinary sanction that does not affect the length of confinement). Although not presently implicated, it is worth noting that the correlative habeas provisions for state prisoners are 28 U.S.C. § 2254, applying specifically to “a person in custody pursuant to the judgment of a State court,” and the somewhat broader provisions of § 2241, covering all persons “in custody” in violation of federal law. 28 U.S.C. §§ 2254(a), 2241(c)(3) (1994). B. Petitioner failed to exhaust the administrative remedies established by the Bureau’s regulations and due to his delay, those remedies are no longer available to him. We have not addressed the issue of precisely under what circumstances" } ]

[ { "docid": "22835595", "title": "", "text": "the record, see Serrano v. Francis, 345 F.3d 1071, 1076-77 (9th Cir.2003), we next consider whether Heck bars his claims. IV. All plaintiffs, including McQuillion, assert that the damages they seek are not compensation for past injury. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court held that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” 411 U.S. at 500, 93 S.Ct. 1827. Preiser did not extend its holding to a claim for damages, saying that a plaintiff seeking damages is not attacking the fact or length of his confinement. Id. at 494, 93 S.Ct. 1827. In Heck, however, the Court squarely addressed the issue: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 512 U.S. at 486-87, 114 S.Ct. 2364 (footnote omitted). Following Heck, the Court addressed whether a § 1983 claim could proceed where the plaintiff sought damages for being denied good-time credits without due process, as opposed to seeking damages for being denied the credits undeservedly. Edwards v. Balisok, 520 U.S. 641, 645, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). There, the Court explained that Heck can limit § 1983 claims seeking damages for using the wrong procedure, not only for reaching the wrong result. Id. at 646, 117 S.Ct. 1584. The Court concluded" }, { "docid": "22175166", "title": "", "text": "in detention pursuant to a judgment of a court of the United States. See Valona v. United States, 138 F.3d 693, 695 (7th Cir.1998) (noting that “ § 2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution of a sentence”); Chambers v. United States, 106 F.3d 472, 475 (2d Cir.1997) (dismissing pursuant to § 2244(a) jail-credit claim brought in earlier § 2241 petition). The District Court here properly found that the issues raised in Queen’s § 2241 petition either had been, or could have been, decided in his previous habeas action. We therefore will affirm the District Court’s judgment dismissing the action pursuant to 28 U.S.C. § 2244(a). . Queen's subsequent appeal to the United States Court of Appeals for the Tenth Circuit and his petition for writ. of certiorari were also unsuccessful. See Queen v. Nalley, 250 Fed.Appx. 895 (10th Cir.2007), cert. denied, - U.S. -, 128 S.Ct. 2061, 170 L.Ed.2d 802 (2008). . A challenge, such as this one, to a disciplinary action that resulted in the loss of good-time credits, is properly brought pursuant to § 2241, as the action could affect the duration of the petitioner's sentence. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (challenge that affects fact or duration of confinement must be brought in habeas petition); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001) (petition that challenges prison disciplinary sanction, including loss of good-time credits, is a challenge to execution of sentence properly brought under § 2241); McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (same); see also Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 758-59 (3d Cir.1996) (entertaining, without discussion of propriety of the vehicle, prisoner's challenge to loss of good time credits following disciplinary proceeding brought pursuant to § 2241). . Subsection (a) provides: No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United" }, { "docid": "17193425", "title": "", "text": "of the special parole conditions of the intensive supervision program. The Court will grant summary judgment in favor of Frasier and Vitello on the basis of qualified immunity. Because there exist genuine issues of material’ fact concerning the violation of Friedland’s clearly established rights by DiSabato, Dilkes, MaeCly-mont, and Seligman, their motions for summary judgment on the ground of qualified immunity will be denied. 5. Cognizability of § 1983 Action It was established in Preiser v. Rodriguez, 411 U.S. 475, 488-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks speedier release, even though such a claim may come within the literal terms of § 1983. Furthermore, in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held that a § 1983 action for damages for an unconstitutional imprisonment is not cognizable unless the underlying conviction or sentence has been invalidated. The Supreme Court held: that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. In Edwards v. Balisok, 520 U.S. 641, —, 117 S.Ct. 1584, 1589, 137 L.Ed.2d 906 (1997), the Supreme Court extended Heck by holding that a prisoner’s § 1983 action challenging a prison disciplinary sanction and seeking “declaratory relief and money damages, based on allegations of deceit and bias on the part of the decisionmaker that necessarily imply the invalidity of the punishment imposed, is not cognizable under" }, { "docid": "10578380", "title": "", "text": "to money damages for the alleged “inaccuracies” in calculating his sentence. He does not allege that there are inaccurate factual statements in the pre-sentence report, see Deters, 85 F.3d at 660; Sellers v. Bureau of Prisons, 959 F.2d 307, 309-10 (D.C.Cir.1992); rather he essentially contests that portion of the report consisting of legal conclusions that aided the sentencing court in computing the length of his sentence. As a result, his complaint must be viewed as a challenge to the duration of his sentence. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held that a claim for damages under 42 U.S.C. § 1983 that challenges the fact or duration of a prisoner’s conviction or confinement is not cognizable unless that conviction or confinement has been invalidated in a separate proceeding. A plaintiff who seeks to recover damages for allegedly unconstitutional confinement (or any other harm caused by actions the unlawfulness of which would render his sentence invalid) must prove that the sentence has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a fed-' eral court’s issuance of a writ of habeas corpus.” Id. The rationale of Heck has been applied to damage claims against federal officials in actions under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), see Williams v. Hill, 74 F.3d 1339, 1340 (D.C.Cir.1996), and to a claim for damages brought by a state prisoner challenging the validity of disciplinary proceedings used to deprive him of good-time credits, thereby delaying his release, see Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 1588-89, 137 L.Ed.2d 906 (1997). We conclude that White’s suit, which seeks damages in conjunction with a challenge to the length of his confinement, is governed by Preiser and Heck. Because a judgment in favor of White on his challenge to the" }, { "docid": "3733245", "title": "", "text": "damage he suffered by the alleged inaction of defendants is dependent on a determination of the invalidity of his conviction.” The court thus treated the present complaint as a petition for habeas corpus and dismissed it because Mack had failed to exhaust his state court remedies. Mack moved for a modification of the order of dismissal, urging that the action simply be stayed until his state appeals were exhausted. That motion was denied, and this appeal followed. II. DISCUSSION On this appeal, Mack renews his contention that his present action should not have been dismissed but should merely be stayed until the completion of his state court appeals. For the reasons below, we agree. A. The Nature of the Complaint A state prisoner may not bring a civil rights action in federal court under § 1983 to challenge either the validity of his conviction or the fact or duration of his confinement. Those challenges may be made only by petition for habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973) (barring prisoners’ § 1983 suits seeking injunction against allegedly unconstitutional revocation of “good time” credits where that relief would result in reducing the length of plaintiffs’ confinement). A federal habeas petition, of course, may not be entertained until the petitioner has exhausted his state court remedies. 28 U.S. C. § 2254(b) (1982); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). In contrast, a civil rights action for damages, insofar as it does not also seek to void or shorten the term of imprisonment, is not a challenge that should be made by means of a habeas petition: If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release — the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy. Preiser v. Rodriguez, 411 U.S. at 494, 93 S.Ct. at 1838 (emphasis" }, { "docid": "9686919", "title": "", "text": "pursued if a successful plaintiffs verdict would implicitly undermine the factual findings that support punishment imposed in a prison disciplinary matter. Defendant relies on Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 1585-87, 137 L.Ed.2d 906 (1997), which expanded the holding of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). 2. Background Case Development: In Preiser v. Rodriguez, 411 U.S. 475, 488-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), a state prisoner brought an action under 42 U.S.C. § 1983 for injunctive relief to restore good-time credits lost as a result of disciplinary proceedings. The Supreme Court noted that when the general provisions of § 1983 overlap with the specific provisions of the habeas corpus statute under 28 U.S.C. § 2254, habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983. The Preiser approach avoids two potential conflicts that could occur if a § 1983 case could be initiated when a § 2254 habeas action was available. First, Congress, out of concern for federalism requires habeas petitioners to exhaust state remedies in order to give state courts the opportunity to correction any federal constitutional error before the federal courts can exercise jurisdiction. If a § 1983 action, which has no such exhaustion requirement, could be brought before a habeas action, this Congressional policy deferring initially to state courts would be eviscerated. Second, if a § 1983 action could be brought while a state criminal appeal or other remedy was available or being pursued, a § 1983 judgment that was entered prior to the conclusion of the state proceedings would have issue preclusive effect on critical overlapping factual questions between the two cases. Important principles of federalism would again be involved were this to occur and federal courts could legally bind state courts on such factual determinations. These problems of potential conflict between § 1983 and habeas or state criminal proceedings arose again in Heck v." }, { "docid": "9355391", "title": "", "text": "released Anyanwutaku on parole. Because In re Smith, 114 F.3d 1247, 1250 (D.C.Cir.1997), makes clear that Anyanwuta-ku’s appeal falls squarely within the ambit of the PLRA’s filing fee requirements, we ordered Anyanwutaku to pay the necessary fee before we would consider the remaining issues in his case. Anyanwutaku v. Moore, No. 96-7259 (D.C.Cir. June 18, 1998). He has now made that payment, so his appeal is properly before us. II We begin with a few threshold issues: Did Anyanwutaku need to bring his challenges to his parole eligibility date in habeas? Did he need to obtain a certificate of appealability pursuant to the newly enacted AED-PA? What effect does his release have on the justiciability of his claims? As to the first issue, appellees contend that Anyanwutaku should have brought his challenges to his parole eligibility date not under section 1983, but as a petition for habeas corpus, and that because Anyanwutaku failed to exhaust his local habeas remedy, the district court lacked jurisdiction over his claims. We disagree. Starting with Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court has carved out a category of prisoner cases challenging the “fact or duration” of confinement that sound exclusively in habeas. Id. at 500, 93 S.Ct. 1827. In Preiser, state prisoners brought actions under section 1983 seeking restoration of good time credits that they lost as a result of adyerse disciplinary actions, actions the prisoners claimed deprived them of due process.. Holding that the prisoners must bring their claims in habeas, the Supreme Court noted that “even if restoration of respondents’ good-time credits had merely shortened the length of their confinement, rather than required immediate discharge from that confinement, their suits would still have been within the core of habeas corpus in attacking the very duration of their physical confinement itself.” Id. at 487-88, 93 S.Ct. 1827. Such cases, the Court said, must take the form of habeas petitions exclusively because 28 U.S.C. § 2254(b) “require[s] exhaustion of adequate state remedies as a condition precedent to the invocation of federal judicial relief.... It would" }, { "docid": "6034944", "title": "", "text": "114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Id. at 487, 114 S.Ct. at 2373 (footnote omitted). The Court ruled that habeas corpus was the only permitted mode of federal collateral attack on a state conviction. Id. at 481-82, 114 S.Ct. at 2369-70. The Court analogized § 1983 actions seeking damages for alleged constitutional violations related to a state criminal conviction to common law malicious prosecution claims, for which termination of the prior criminal proceeding in the accused’s favor is an essential element. Id. at 484-86, 114 S.Ct. at 2371-72. A § 1983 suit like the present, contending that a state parole revocation was constitutionally invalid, challenges the “fact or duration of [the plaintiffs] confinement.” Id. at 481, 114 S.Ct. at 2369; accord Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir.1996); Littles v. Board of Pardons & Paroles Din, 68 F.3d 122, 123 (5th Cir.1995) (per curiam); cf. Edwards v. Balisok, — U.S. -, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (applying the Heck rule to a prisoner’s deprivation of good-time credits in a state prison disciplinary proceeding); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.1995) (per curiam) (applying the Heck rule to a state decision to deny parole); see also Preiser v. Rodriguez, 411 U.S. 475, 490-92, 93 S.Ct. 1827, 1836-37, 36 L.Ed.2d 439 (1973) (holding that a petition for habeas corpus is the only federal procedure for attacking “the validity of the fact or length” of a state prisoner’s confinement and applying this principle to “areas of particular state administrative concern” such as the deprivation of a prisoner’s good-conduct-time credits in state prison disciplinary proceedings)." }, { "docid": "14025655", "title": "", "text": "question to be considered by the district court if properly raised by any party on remand. For one thing, whether Heck applies to Abu-said’s case at all raises a serious and substantial question that we offer the district court— upon appropriate motion and full briefing by any of the parties—the first opportunity to resolve. A brief review of the pertinent case law may be helpful. The Heck principle has its origins in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), which held that the sole remedy in federal court for a prisoner seeking restoration of good-time credits is a writ of habeas corpus. See id. at 500, 93 S.Ct. 1827. The Court reasoned that such an action constitutes an attack on \"the very duration of ... physical confinement,” and thus it lies at \"the core of habeas corpus.” Id. at 487-88, 93 S.Ct. 1827. Subsequently, in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court reiterated that state prisoners must use habeas in seeking restoration of good-time credits, but held that an action challenging the validity of the procedures for revoking good-time credits, seeking damages and prospective relief, was properly brought under § 1983. See id. at 554-55, 94 S.Ct. 2963. The Supreme Court’s post-Heck decision in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), limited the Wolff holding. In Balisok, the Court held that a state prisoner’s challenge only to the procedures by which his good-time credits were revoked — not to the revocation itself — nevertheless necessarily implied the invalidity of the punishment imposed. Accordingly, the prisoner's claims for damages and declaratory relief had to be brought by way of habeas petition. However, his request for injunctive relief altering the challenged procedures prospectively, the Court held, was cognizable under § 1983, since generally “such prospective relief will not 'necessarily imply’ the invalidity of a previous loss of good-time credits.” Id. at 648, 117 S.Ct. 1584. Most recently, in Wilkinson v. Dotson, - U.S. -, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)," }, { "docid": "3313542", "title": "", "text": "PER CURIAM. Larry Cochran, an Indiana state prisoner, filed a pro se petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Mr. Cochran challenged a prison disciplinary sanction that he had received for physically resisting a staff member, which resulted in a one-month loss of telephone privileges and a suspended deprivation of sixty-days’ good time credit. Mr. Cochran claimed that the prison disciplinary board had denied him due process of law because it had refused his requests to continue the hearing and to present an additional witness and because it had found him guilty without sufficient evidence. The district court concluded that Mr. Cochran had failed to assert a cognizable claim under § 2254 and dismissed the petition. For the reasons set forth in this opinion, we vacate the judgment of the district court and remand the case with direction to dismiss as moot. 1. Indiana state prisoners have a liberty interest in good time credits, and they are entitled to due process before the State may revoke those credits. See McPherson v. McBride, 188 F.3d 784, 785-86 (7th Cir.1999). The disciplinary sanction, when viewed in its entirety, imposed upon Mr. Cochran affected both the duration of his confinement (at least potentially) and a condition of his confinement. We have explained previously that a prisoner challenging the fact or duration of his confinement must seek habeas corpus relief; a prisoner challenging a condition of his confinement, by contrast, must seek relief under 42 U.S.C. § 1983: State prisoners who want to challenge their convictions, their sentences, or administrative orders revoking good-time credits or equivalent sentence-shortening devices, must seek habeas corpus, because they contest the fact or duration of custody. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). State prisoners who want to raise a constitutional challenge to any other decision, such as transfer to a new prison, administrative segregation, exclusion from prison programs, or suspension of privileges, must instead employ § 1983 or another statute authorizing damages" }, { "docid": "22154894", "title": "", "text": "commissary during the prior six-month period. Concerning the specific envelopes that were the subject of the disciplinary charge, Malchi received ten envelopes from indigent inmate supplies on June 3,1997 and mailed out nine envelopes between June 3, 1997 and June 11, 1997. Thus, the evidence indicates that at least one of the ten envelopes in question was legitimately in Malchi’s possession. Mal-chi was found guilty of the charge by the Disciplinary Hearing Officer. The magistrate judge determined that the findings of the disciplinary officer were based on flawed analysis and that there were no facts that would support the finding that Malchi was found in possession of a box of stolen envelopes. The magistrate judge recommended that the habeas petition be granted and that Malchi’s time-earning status and good-time credits be restored. The Warden filed objections to the recommendation arguing that the disciplinary officer had made credibility determinations that the magistrate judge was not allowed to second guess on the basis of a cold record. The district court overruled the Warden’s objections, finding that it was apparent from the face of the record that Malchi did not possess a box of envelopes, that the disciplinary decision was arbitrary and capricious and that the hearing did not meet the requirements of minimal due process. The district court granted the habeas writ and ordered the respondent to restore to Malchi his time-earning status and all lost good time resulting from the disciplinary conviction challenged in this ease. The Warden filed a timely notice of appeal. II. ANALYSIS A. Controlling law and standard of review The magistrate judge characterized Malchi’s petition as arising under 28 U.S.C. § 2241. However, Malchi is alleging that the disciplinary action resulted in a change in his good-time-earning status which extended the date for his release on mandatory supervision. State prisoners who allege that they were improperly denied good-conduct credit that, if restored, would have resulted in their immediate or sooner release from prison, fall under § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); see also McGary v. Scott," }, { "docid": "22949910", "title": "", "text": "his claim is cognizable. With respect to the first question, the Supreme Court has consistently distinguished between claims that necessarily implicate the fact or duration of confinement (which it has repeatedly held are subject to the favorable termination rule) and claims that relate only to the conditions of incarceration (which it has not suggested are subject to the favorable termination rule). Edwards v. Balisok, 520 U.S. 641, 646-48, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). This line of cases instructs, and all but one of the circuit courts to consider the issue have held, that both current and former prisoners can use § 1983 to raise claims relating only to the conditions, and not the fact or duration, of their confinement without satisfying the favorable termination rule. Because Torres raises such a claim (and thus the answer to the first question above is no), we need not consider the second, broader question of whether the favorable termination rule applies to persons unable to petition for a writ of habeas corpus. A. In Preiser, the first ease to address the overlap between § 1983 and the federal habeas laws, state prisoners deprived of good-time credits as a result of disciplinary proceedings sought restoration of the credits, which would have resulted in their immediate release, under § 1983. 411 U.S. at 476-77, 93 S.Ct. 1827. The Supreme Court held that in light of the specific federal remedy provided by 28 U.S.C. § 2254, the prisoners’ request for injunc-tive relief was not cognizable under the broad language of § 1983. Id. at 489-90, 500, 93 S.Ct. 1827. The Court explained that “state prisoners attacking the validity of the fact or length of their confinement” must proceed in federal court under the habeas laws, which expressly require exhaustion of adequate state remedies, and may not use § 1983 to circumvent this requirement. Id. at 489-90, 93 S.Ct. 1827. However, the Court emphasized that “a § 1983" }, { "docid": "9334608", "title": "", "text": "STEPHEN H. ANDERSON, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. Petitioner appeals from an Order of the district court dismissing his Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. The district court’s dismissal of the habeas petition, alleging that Petitioner was entitled to a “speedier release” due to improper state calculation of earned credits, was based on the ground that Petitioner had failed to exhaust state court remedies or prove that state remedies are futile. Because we conclude exhaustion would be futile, we remand to the district court for further proceedings. “[W]hen a state prisoner is challenging the ... duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to ... a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841-42, 36 L.Ed.2d 439 (1973). Habeas corpus is the proper remedy for the withholding of good time credits if the withholding affects the length of confinement. Gregory v. Wyse, 512 F.2d 378, 381 (10th Cir.1975). A federal court, however, cannot consider a habeas petition unless the petitioner has exhausted state remedies or there are no available state remedies. 28 U.S.C. § 2254(b); see Taylor v. Wallace, 931 F.2d 698, 699 n. 1 (10th Cir.1991) (action for restoration of good time credits properly brought under § 2254 with exhaustion of state remedies required). “[E]xhaustion of state remedies is not required where the state’s highest court has recently decided the precise legal issue that petitioner seeks to raise on his federal habeas petition. In such a case, resort to state judicial remedies would be futile.” Goodwin v. Oklahoma, 923 F.2d 156, 157 (10th Cir.1991). Effective November 1, 1988, Oklahoma enacted a new earned credits scheme, which was to be applied prospectively. Okla.Stat. tit. 57, §§ 138, 224. The Oklahoma" }, { "docid": "8881191", "title": "", "text": "violation of Louisiana prison regulations. White complains that when he did receive a hearing, the hearing officer, one Captain Glover, coerced him into accepting a guilty plea. More specifically, White alleges that Glover threatened to take away two full years of White’s good time credits if White did not accept a guilty plea and lose 180 days of good time credits. White wrote several prison officials to try and recover his good time credits based on his lengthy administrative detention and allegedly coerced guilty plea. White alleges that in response to one of his letters, Warden Michael Phillips told him that he could recover his good time credits if White could show that he was detained in administrative segregation without a hearing in violation of prison regulations; upon producing proof of that detention, however, Phillips allegedly refused to reinstate the credits because White had not properly appealed his guilty plea. White filed the instant civil rights petition pursuant to 42 U.S.C. § 1983 on 27 March 1997 while still incarcerated, complaining that the coerced guilty plea and administrative detention deprived him of due process of law. We determined that because White’s objection to his guilty plea challenged the deprivation of his good time credits, and thus the duration of White’s confinement, White must first bring that complaint by habeas corpus. See Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 1587, 137 L.Ed.2d 906 (1997); Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); cf. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (holding that if a suit challenges the fact or duration of confinement, proper vehicle for challenge is habeas corpus rather than § 1983). As such, we construed White’s challenge to his guilty plea as a habeas petition. We then dismissed this habeas petition without prejudice for failure to exhaust state remedies and stayed White’s § 1983 challenge to the administrative segregation until he pursued ha-beas relief. Shortly thereafter, White finished his sentence and was released from prison. The magistrate reopened the § 1983 case at White’s request" }, { "docid": "9355392", "title": "", "text": "U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court has carved out a category of prisoner cases challenging the “fact or duration” of confinement that sound exclusively in habeas. Id. at 500, 93 S.Ct. 1827. In Preiser, state prisoners brought actions under section 1983 seeking restoration of good time credits that they lost as a result of adyerse disciplinary actions, actions the prisoners claimed deprived them of due process.. Holding that the prisoners must bring their claims in habeas, the Supreme Court noted that “even if restoration of respondents’ good-time credits had merely shortened the length of their confinement, rather than required immediate discharge from that confinement, their suits would still have been within the core of habeas corpus in attacking the very duration of their physical confinement itself.” Id. at 487-88, 93 S.Ct. 1827. Such cases, the Court said, must take the form of habeas petitions exclusively because 28 U.S.C. § 2254(b) “require[s] exhaustion of adequate state remedies as a condition precedent to the invocation of federal judicial relief.... It would wholly frustrate explicit congressional intent to hold that the respondents in the present case could evade this requirement by the simple expedient of putting a different label on their pleadings.” Id. at 489-90, 93 S.Ct. 1827. Unlike the prisoners in Preiser, whose challenges to the loss of good time credits, if successful, would have automatically shortened the duration of their confinement, Any-anwutaku challenges his assigned parole eligibility date. Although Anyanwutaku would have been eligible for parole at an earlier date had he prevailed on his claims in the district court, because D.C. parole decisions are entirely discretionary, see D.C.Code Ann. § 24-204(a) (1996), there is no guarantee that he would have been released any earlier. Interpreting Preiser, a majority of our sister circuits have held that challenges to state parole procedures whose success would not necessarily result in immediate or speedier release need not be brought in habeas corpus, even though the prisoners filed their suits for the very purpose of increasing their chances of parole. See, e.g., Gwin v. Snow, 870 F.2d 616, 624-25" }, { "docid": "8881192", "title": "", "text": "plea and administrative detention deprived him of due process of law. We determined that because White’s objection to his guilty plea challenged the deprivation of his good time credits, and thus the duration of White’s confinement, White must first bring that complaint by habeas corpus. See Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 1587, 137 L.Ed.2d 906 (1997); Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); cf. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (holding that if a suit challenges the fact or duration of confinement, proper vehicle for challenge is habeas corpus rather than § 1983). As such, we construed White’s challenge to his guilty plea as a habeas petition. We then dismissed this habeas petition without prejudice for failure to exhaust state remedies and stayed White’s § 1983 challenge to the administrative segregation until he pursued ha-beas relief. Shortly thereafter, White finished his sentence and was released from prison. The magistrate reopened the § 1983 case at White’s request and issued a report and recommendation dismissing White’s complaint as frivolous pursuant to Heck v. Humphrey because White had not successfully overturned his guilty plea on direct appeal or habeas corpus review. II. Analysis Our analysis in this case turns on the proper understanding of Heck. In Heck, a state prisoner filed a § 1983 suit in federal district court seeking damages for allegedly unconstitutional police actions while his direct appeal was still pending. See Heck, 512 U.S. at 479, 114 S.Ct. 2364. The full Court joined Justice Scalia’s opinion announcing a “favorable termination” prerequisite to bringing a § 1983 action that might challenge the fact or duration of a prisoner’s confinement: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question" }, { "docid": "20765008", "title": "", "text": "29 L.Ed.2d 619 (1971). Generally, because they contest the fact or duration of custody, prisoners who want to challenge their convictions, sentences or administrative actions which revoke good-time credits, or who want to invoke other sentence-shortening procedures, must petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 487-88, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Prisoners who raise constitutional challenges to other prison decisions — including transfers to administrative segregation, exclusion from prison programs, or suspension of privileges, e.g. conditions of confinement, must proceed under Section 1983 or Bivens. The more common habeas petitions are those which challenge the validity of a conviction and/or sentence under 28 U.S.C. § 2254 (by prisoners in state custody) or 28 U.S.C. § 2255 (by prisoners in federal custody). Petitions under Section 2255 must be filed in the district in which petitioner was convicted and sentenced. In this case, however, petitioner proceeds under 28 U.S.C. § 2241, which allows Mm to attack the execution of a sentence in the district where he is confined. In Preiser the Supreme Court appeared to draw a line between civil rights claims and habeas actions when it ruled that prisoners could not seek restoration of good time credits under Section 1983. The Court noted that Section 1983 is a proper vehicle by which to challenge conditions of confinement, but that demands to restore good time credits are within the core of habeas because they attack the duration of the prisoner’s physical confinement. 411 U.S. at 485-89, 93 S.Ct. 1827. In dicta, however, the Court suggested that habeas might also provide a remedy for a challenge to conditions of confinement. Given this suggestion, circuit and district courts have struggled for 27 years to ascertain exactly what line the Supreme Court intended to draw between habeas and civil rights actions. Petitioner argues that the Preiser dicta supports his jurisdictional claim and that Section 2241 affords relief on a claim that an inmate is held in an unconstitutional place of confinement. Petitioner also relies upon Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d" }, { "docid": "19773239", "title": "", "text": "must instead be brought through a petition for a writ of habeas corpus. Federal courts have long recognized the potential for prisoners to evade the habeas exhaustion requirements by challenging the duration of their confinement under 42 U.S.C. § 1983, rather than by filing habeas petitions. Consequently, the Supreme Court recognized a “habeas exception” to § 1983 in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), when it held that suits challenging the fact or duration of confinement fall within the traditional scope of habeas corpus and accordingly are not cognizable under § 1983. The Court expanded the habeas exception to § 1983 in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). In Heck, the Court determined that, unless a prisoner’s conviction or sentence were previously set aside by a separate legal or administrative action, § 1983 would not countenance claims for damages if a finding for the plaintiff would necessarily invalidate a conviction or sentence. And in Balisok, the Court concluded that a prisoner cannot use § 1983 to challenge prison procedures employed to deprive him of good-time credits when the alleged procedural defect alleged would, if established, “necessarily imply the invalidity of the punishment imposed.” 520 U.S. at 648, 117 S.Ct. 1584. After the district court issued its opinion, the Supreme Court decided Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). There, the Court reviewed the habeas-exception cases and stated: These cases, taken together, indicate that a state prisoner’s § 1983 action is barred ... — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) — if success in that action would necessarily demonstrate the invalidity of confinement or its duration. Id. at 81-82, 125 S.Ct. 1242. Applying this rule, the Court concluded that the plaintiffs’ challenges to parole procedures could proceed under § 1983 because they did not automatically imply shorter" }, { "docid": "5618982", "title": "", "text": "has limited the availability of § 1983 actions for prisoners in a series of cases, the most pertinent of which is Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Our court recently explained the bar that Heck places on § 1983 suits brought by prisoners: Federal courts have long recognized the potential for prisoners to evade the habeas exhaustion requirements by challenging the duration of their confinement under 42 U.S.C. § 1983, rather than by filing habeas petitions. Consequently, the Supreme Court recognized a “habeas exception” to § 1983 in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), when it held that suits challenging the fact or duration of confinement fall within the traditional scope of habeas corpus and accordingly are not cognizable under § 1983. The Court expanded the habeas exception to § 1983 in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). In Heck, the Court determined that, unless a prisoner’s conviction or sentence were previously set aside by a separate legal or administrative action, § 1983 would not countenance claims for damages if a finding for the plaintiff would necessarily invalidate a conviction or sentence. And in Balisok, the Court concluded that a prisoner cannot use § 1983 to challenge prison procedures employed to deprive him of good-time credits when the ... procedural defect alleged would, if established, “necessarily imply the invalid ity of the punishment imposed.” 520 U.S. at 648, 117 S.Ct. at 1584. Thomas v. Eby, 481 F.3d 434, 438 (6th Cir.2007) (emphasis in original). MDOC initially argued that Heck bars both Lockett’s First Amendment free-speech claim and his Eighth Amendment excessive-force claim, but later conceded at oral argument that his Eighth Amendment excessive-force claim is not barred by Heck because Lockett’s disruptive and threatening behavior upon leaving the hearing room would not justify the allegedly excessive force that Lockett was subjected to, even if Lockett was in fact guilty of assault. See Huey v. Stine," }, { "docid": "3313543", "title": "", "text": "v. McBride, 188 F.3d 784, 785-86 (7th Cir.1999). The disciplinary sanction, when viewed in its entirety, imposed upon Mr. Cochran affected both the duration of his confinement (at least potentially) and a condition of his confinement. We have explained previously that a prisoner challenging the fact or duration of his confinement must seek habeas corpus relief; a prisoner challenging a condition of his confinement, by contrast, must seek relief under 42 U.S.C. § 1983: State prisoners who want to challenge their convictions, their sentences, or administrative orders revoking good-time credits or equivalent sentence-shortening devices, must seek habeas corpus, because they contest the fact or duration of custody. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). State prisoners who want to raise a constitutional challenge to any other decision, such as transfer to a new prison, administrative segregation, exclusion from prison programs, or suspension of privileges, must instead employ § 1983 or another statute authorizing damages or injunctions — when the decision may be challenged at all, which under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), will be uncommon. Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir.2000). Mr. Cochran’s loss of telephone privileges affected the conditions of his custody; the suspended deprivation of good time credits, however, could have lengthened his confinement. Consequently, he filed a habeas corpus petition to contest this potential loss of good time credits. Section 2254 requires that the petitioner be “in custody.” 28 U.S.C. § 2254(a); see Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam). In Preiser v. Rodriguez, 411 U.S. at 487-89, 93 S.Ct. 1827, the Supreme Court established that actions for the restoration of good time credits fall within the “core” of habeas corpus because they go directly to the constitutionality of the prisoner’s confinement itself and seek 'either immediate release or a shortened length" } ]

[ { "docid": "18216583", "title": "", "text": "MEMORANDUM AND ORDER WEINSTEIN, District Judge. Defendants moved during trial and after being found guilty to dismiss the indictment on the ground that it was based purely on hearsay. For the reasons indicated below their motions are denied. At the trial, the main evidence against the defendants was the testimony of a group of Special Agents of the Treasury Department. They were on the scene when defendants passed a large number of counterfeit bills. Despite the fact that more than a half dozen Special Agents participated in the investigation and arrest, a government agent without any direct knowledge of the events was the only witness who testified before the grand jury. He explained that all the other agents were busy when the indictment was sought. In his testimony before the grand jury he synthesized the reports of those agents who had observed the relevant events. But he spoke as would one who had seen the events he described and a grand jury would not have known that this witness’s knowledge was secondhand. The government contends that the practice of relying on hearsay was authorized by United States v. Costello, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), aff’g 221 F.2d 668 (2d Cir. 1955). Costello held that an indictment was not invalid merely because it was based upon hearsay. Subsequent cases have approved indictments based on hearsay alone even though substantial direct evidence was readily available for presentation to the grand jury. United States v. Andrews, 381 F.2d 377, 378 (2d Cir. 1967); United States v. Payton, 363 F.2d 996, 998-999 (2d Cir. 1966) (fact that grand jury was not aware that witness was describing information received from another was not sufficient basis for reversal); United States v. Heap, 345 F.2d 170, 171-172 (2d Cir. 1965). In a burst of exuberance at the release from pre-Costello restrictions, federal prosecutors appear to have made substantial use of the technique typified by the instant case. This practice has come under substantial attack in this circuit. As Judge Waterman put it: “excessive use of hearsay in the presentation of government cases" } ]

[ { "docid": "23443999", "title": "", "text": "have been dismissed under United States v. Estepa, 471 F.2d 1132, 1137-(2 Cir. 1972), is meritless. We there held that dismissal would be required when there is a high probability that the grand jury would not have indicted if presented with first-hand testimony rather than hearsay, or where the prosecution misleads the grand jury as to the “shoddy merchandise they are getting.” The complaints here are that instead of calling Perkins before the grand jury the prosecutor had Agent Handoga read Perkins’ testimony before the first grand jury which included the statement that he had “found out [Big Foot’s] name was Bob Marchand” but not what Perkins later claimed to be the rather weak photographic identification, and added Handoga’s own observations with respect to Perkins and Roy’s identifications. Perkins’ testimony before the first grand jury was clearly hearsay with respect to the second grand jury under the circumstances, and we shall assume arguendo that the agent’s also was, cf. 4 Weinstein and Berger, supra, at 801-137 to 140. Assuming that Estepa has survived United States v. Calandra, 414 U.S. 338, 344-45, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), as we seemingly did in United States v. Bertolotti, 529 F.2d 149, 159 (2 Cir. 1974), we do not find either branch of the test to have been met. There was no deception of the grand jury; United States v. Harrington, 490 F.2d 487, 489-90 (2 Cir. 1973); United States v. Olsen, 453 F.2d 612, 615 (2 Cir.), cert. denied sub nom., Leach v. United States, 406 U.S. 927, 92 S.Ct. 1801, 32 L.Ed.2d 128 (1972), and there is not the slightest doubt that the grand jury would have indicted if Perkins had been called, as he should have been if available. We likewise reject defendant’s argument that the indictment should have been dismissed because it was based in part on Roy’s photographic identification which was later ruled to be inadmissible at trial because of impermissible suggestiveness. Apart from our doubt as to the correctness of that ruling, see fns. 15, 24 supra, the Government, in presenting a case to the grand" }, { "docid": "5328451", "title": "", "text": "indictment against Schlesinger had been dismissed, the superseding indictment was presented to a grand jury unfamiliar with the case. Assistant United States Attorney Fried, who had obtained the original indictment against Schlesinger, recounted to the grand jury the allegations of that indictment and explained that a superseding indictment was needed to omit the surplus language in count two. After indicating that he had the transcripts of the testimony of the witnesses before the earlier grand jury, Fried summarized that testimony and then offered to have the transcripts read to the grand jury. The grand jury foreman declined this invitation, however, and after Fried had left the room, the grand jury voted the superseding indictment. Schlesinger’s argument that his superseding indictment violated the Grand Jury Clause of the Fifth Amendment is foreclosed by Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956) where the Court stated that: “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for [a] trial of the charge on the merits. The Fifth Amendment requires nothing more.” The broad language of Costello was reaffirmed in United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and has been reflected in numerous decisions of this court. See, e. g., United States v. Mangan, 575 F.2d 32 (2 Cir. 1978); United States v. Marchand, 2 Cir., 564 F.2d 983, cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978); United States v. Bertolotti, 529 F.2d 149 (2 Cir. 1975); United States v. Ramsey, 315 F.2d 199 (2 Cir. 1963). Though it is true that Fried’s summary to the grand jury of prior grand jury testimony was at best hearsay, the indictment was unquestionably valid on its face, and thus the Fifth Amendment does not require that we look behind it to consider the character of the evidence upon which it is based. Schlesinger also argues, however, that this court must dismiss his indictment as an exercise of" }, { "docid": "1225515", "title": "", "text": "United States v. Arcuri, 405 F.2d 691, 693 (2d Cir. 1968). Declining to overrule the district court, Arcuri gave a final warning that dismissal “would ‘be granted without a showing of prejudice to the defendant if it is clear that hearsay alone was deliberately relied upon when better evidence was available for presentation to the grand jury.’ ” Id. at 694. The warning became reality in United States v. Estepa, 471 F.2d 1132 (1972) (Friendly, Waterman & Hays, JJ.) Since Estepa the district courts of the Second Circuit have dismissed superseding indictments on at least three occasions. United States v. Provenzano, 440 F.Supp. 561 (S.D.N.Y.1977); United States v. Pastor, 419 F.Supp. 1318 (S.D.N.Y.1975); United States v. Gallo, 394 F.Supp. 310 (D.Conn. 1975). The Ninth Circuit has expressly rejected a proposed supervisory rule like that of the Second Circuit. United States v. Chanen, 549 F.2d 1306 (9th Cir. 1977), involved thrice aborted grand jury proceedings. In May and June of 1974, the Government presented to the grand jury the live testimony of five witnesses, regarding an allegedly false claim brought against the United States in the Court of Claims by a corporation and several of its officers. The Government neither prepared nor requested an indictment. None was returned. Before a second grand jury in October 1975, the Government agent summarized the testimony presented at the previous grand jury and answered questions. The district court dismissed the indictment for two reasons. First, there had been no reporter at the proceedings. Second, the Government had made no effort to procure nonhearsay testimony. Before á third grand jury in April 1976, with a court reporter present, the Government read the transcripts from the first grand jury — the transcript of one of the witnesses was deleted. Id. at 1308 n. 1. The agent once again appeared, presented the documentary evidence, and answered questions. The grand jury returned a true bill. Once again the district court dismissed the indictment because of the extensive hearsay. The court of appeals reversed for two reasons, First, Chanen presented no specific instance of prosecutorial indiscretion. Second, a supervisory rule" }, { "docid": "13199834", "title": "", "text": "prosecutor’s presentation of a single hearsay witness before the grand jury when first-hand testimony was readily available resulted in the grand jury being misinformed as to the actual evidence in the case. The defendant argues that this excessive reliance on hearsay, especially given the Brito decision, constitutes a violation before the grand jury that “substantially influenced the grand jury’s decision to indict,” and raised a “grave doubt that the decision to indict was free from the substantial influence” of the violation. Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374-75. To bolster this contention, the defendant points out that there were several inconsistencies between Agent Cucinelli’s hearsay testimony before the grand jury regarding Felton, which consists of only six lines in the grand jury transcript, and Detective Fagan’s testimony concerning Felton at trial. The government argues that the presentation of hearsay testimony to the grand jury is perfectly appropriate as long as the grand jury is not misled as to the facts of the case or the quality of the proof it is hearing. In this case, the government argues that the prosecutor carefully instructed the grand jury about the nature of the evidence it was hearing. Further, the government argues that the use of first hand testimony before the grand jury would not have produced a different result because Agent Cucinelli’s testimony before the grand jury is similar in all relevant respects to that presented by Detective Fa-gan at trial. The government in this case presented one witness to the grand jury, Agent Robert Cucinelli. Unlike Brito, where the agent testifying before the grand jury had “little personal knowledge” of the facts, Brito, 907 F.2d at 395, Agent Cucinelli had absolutely no personal knowledge of the events surrounding the defendant’s arrest. The sole basis of his knowledge when testifying before the grand jury was two phone conversations with Detective Fagan and the review of reports made by Detective Fagan and other officers involved in the arrest. This Court repeatedly asked in conferences why the government had relied on the hearsay testimony of one witness before the" }, { "docid": "19681353", "title": "", "text": "L.Ed.2d 872, cert. dismissed as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (1967), the court strongly admonished the government not to make excessive use of hearsay: “While we are not condemning the ■procedure used here before the grand jury, we think it not amiss for us to state that excessive use of hearsay in the presentation of government cases to grand juries tends to destroy the historical function of grand juries in assessing the likelihood of prosecutorial success and tends to destroy the protection from unwarranted prosecutions that grand juries are supposed to afford to the innocent. Hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge.” 368 F.2d at 730. In United States v. Arcuri, 282 F.Supp. 247 (E.D.N.Y.), aff’d, 405 F.2d 691 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969), this court, after reviewing the decisions, refused to overturn an indictment, despite the unjustified reliance on hearsay by the government, because the grand jury could not possibly have failed to indict on the basis of the non-hearsay evidence. But the government’s continuing failure to comply with the Second Circuit’s admonition in Umans was felt to warrant a stronger rule and more uniformly applied sanctions. It was held that a timely motion to dismiss an indictment handed down after March 31, 1968 would be granted without a showing of prejudice to the defendant if it were clear that hearsay alone was deliberately relied upon when better evidence was readily available. This local dismissal rule has been exercised on at least one occasion. See United States v. Chesimard, 72 CR 5 (oral decision) (E.D.N.Y.1975). Finally, in United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972), the Court of Appeals ordered an indictment dismissed because of the deliberate and misleading presentation of hearsay to the grand jury. The court reached the conclusion that the time had arrived for the exercise of its supervisory power on the basis of the following considerations:" }, { "docid": "845290", "title": "", "text": "is required for several reasons. First, there was an affirmative duty on the part of the prosecutor under the circumstances here to enlighten the grand jurors as to the hearsay quality of the evidence they were receiving. The prosecutor should also have informed the jurors that Mr. Buckley was available for live testimony in the event they wished to evaluate his credibility for themselves and not rely on the judgment of the preceding grand jury. At a minimum, the government attorney was obligated to provide some guidance as to how the jurors should utilize the two transcripts in determining whether or not an indictment should be returned. To be sure, the jurors realized that they were not going to hear from a live witness. Yet, it cannot be assumed that they possessed the astuteness to evaluate properly the reliability and trustworthiness of the hearsay evidence. In fact, it is reasonable to draw an inference to the contrary, since Mr. Buckley was an admitted perjurer and his demeanor evidence was particularly important in order for the grand jury to determine whether he was engaging in further fabrications. Cf. National Labor Relations Board v. Dinion Coil Co., 201 F.2d 484, 487-490 (2 Cir. 1952). Second, the prosecutor failed to alert the second grand jury that the transcripts upon which it was to base an indictment were permeated with perjurious statements as to crucial, material events. Buckley’s false testimony before the first grand jury poisoned the waters of evidence. This impurity could be removed only with careful and conscientious deliberation by the jurors. Cf. Mesarosh v. United States, 352 U.S. 1, 14, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). While the first grand jury was fully aware of the discrepancies in Buckley’s testimony before it returned the original indictment, it cannot be assumed that the second grand jury recognized that portions of the evidence before it were tainted. This stain of falsehood should have weighed heavily in the balance before the second indictment was returned. The defendants cannot be permitted to stand trial on an indictment which to the government’s knowledge may have" }, { "docid": "5328452", "title": "", "text": "face, is enough to call for [a] trial of the charge on the merits. The Fifth Amendment requires nothing more.” The broad language of Costello was reaffirmed in United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and has been reflected in numerous decisions of this court. See, e. g., United States v. Mangan, 575 F.2d 32 (2 Cir. 1978); United States v. Marchand, 2 Cir., 564 F.2d 983, cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978); United States v. Bertolotti, 529 F.2d 149 (2 Cir. 1975); United States v. Ramsey, 315 F.2d 199 (2 Cir. 1963). Though it is true that Fried’s summary to the grand jury of prior grand jury testimony was at best hearsay, the indictment was unquestionably valid on its face, and thus the Fifth Amendment does not require that we look behind it to consider the character of the evidence upon which it is based. Schlesinger also argues, however, that this court must dismiss his indictment as an exercise of its supervisory powers over the administration of justice. In United States v. Estepa, 471 F.2d 1132 (2 Cir. 1972), we held that an indictment must be dismissed pursuant to the court’s supervisory powers where there is a high probability that the grand jury would not have indicted if presented with first-hand testimony rather than hearsay or where the prosecution has misled the grand jury as to the “shoddy merchandise they are getting.” Neither of the conditions laid down in Estepa is met in this case, however. There is not the slightest doubt that the grand jury would have voted the superseding indictment if it had had, not a summary of their testimony, but the witnesses themselves before it. Nor is there any question but that the grand jurors were aware of the nature of the evidence before them and, indeed, were told explicitly that they could “seek something better if they wish.” Estepa at 1137. In short, this case presents no occasion for the court to invoke its supervisory powers and order an indictment dismissed." }, { "docid": "897374", "title": "", "text": "the jury chose to believe the government’s evidence that they directly participated in the conspiracy. The only other point on appeal that merits any discussion is defense counsel’s contention that his motion to inspect the grand jury minutes should have been granted to enable him to determine whether the indictment was founded upon hearsay or other “incompetent” evidence. In the first place, the Supreme Court has decided, in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), that an indictment based exclusively on hearsay evidence is not constitutionally invalid and that a defendant is not entitled to litigate the sufficiency of the evidence presented to the grand jury. See United States v. Klaes, 453 F.2d 1375 (5th Cir. 1972); United States v. Gower, 447 F. 2d 187 (5th Cir. 1971). Secondly, as we stated in United States v. Cruz, 478 F.2d 408 (5th Cir. 1973), the “best evidence” rule advanced by some Second Circuit judges serves simply as a supervisory guideline to be employed by courts in determining whether or not the independence and integrity of the grand jury have been impaired. Here there is no indication that the court below abused its discretion in not ordering the grand jury minutes produced for defendants. The trial judge, like this court, was given no reason to suspect that the indictment was ill-founded. Quite to the contrary, it was not even necessary for the grand jurors to rely on hearsay. The government agent in charge of the case testified before the grand jury. There, as at trial, presumably he was able to testify from first-hand information. Were we to hold that grand jury minutes must be turned over so that defense counsel could satisfy his mere suspicion that the indictment was based on insufficient evidence, grand jury proceedings would effectively be open at the whim of the defense. This we are not disposed to do. Affirmed. . This rule would discredit an indictment based on hearsay where (1) nonhearsay evidence is readily available; (2) the grand jury is misled into believing it was hearing direct testimony rather" }, { "docid": "3876724", "title": "", "text": "had stated to the first grand jury. But informal unsworn hearsay from the mouth of the prosecutor only is something else altogether. This, we think, is interdicted by the Fifth Amendment. Cf. United States v. Dunham Concrete Products, Inc., 5 Cir. 1973, 475 F.2d 1241, 1248-1249, citing United States v. Tane, 2 Cir. 1964, 329 F.2d 848, 853-854 (indictment must be based on competent evidence) Because the briefs and record in this case leave us uncertain as to the actual procedure followed before the subsequent grand jury which returned the second and superseding indictment against the appellant, we employ here the limited remand procedure used by the Supreme Court in Alderman v. United States, 1969, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176. Cf. United States v. DeVoe, 5 Cir. 1974, 489 F.2d 158. We direct the trial judge to conduct an evidentiary hearing for the purpose of determining whether the grand jury which returned the second indictment against appellant received sworn testimony from someone other than the prosecutor. The hearing should be conducted and its results certified to this Court within ninety days from the date of this opinion. Our determination as to whether finally to affirm the judgment below or to reverse for dismissal of the indictment will follow such certification. Jurisdiction of this appeal is retained in this Court during the limited remand for the stated purpose. Remanded with instructions. . The government brief, page 6, states: “In light of the purpose and explanation given to the grand jury, the presentation of an FBI agent to recap the same evidence as summarized by the United States Attorney would seem to be only a technical distinction.” The inference is that no one other than the prosecutor appeared before the second grand jury. However, a comment inconsistent with this was made by the Assistant United States Attorney during the pre-trial inquiry into the issue. This statement by the attorney seems to say that agents were before the second grand jury: It was the second grand jury that had been empaneled a month or two before that, but all" }, { "docid": "23133702", "title": "", "text": "to the rigors of cross examination and other hazards including contempt. Id. at 132. In Loraine v. United States, 396 F.2d 335 (9th Cir.), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968), the defendant moved to dismiss the indictment on grounds that the prosecutor, in his presentation to the grand jury, wilfully suppressed evidence that would undermine the credibility of three crucial witnesses before the grand jury. Apparently one witness had a criminal record and was then under indictment in several other cases; another witness had been charged with embezzlement; the last had been enjoined from dealing in securities. We held that the trial court did not err in refusing to invalidate a federal indictment because the Government did not produce before the grand jury all evidence in its possession tending to undermine the credibility of the witnesses appearing before that body. Loraine was accorded the full protections of the Fifth and Fourteenth Amendments when, at the trial on the merits, he was permitted to expose all the facts bearing upon his guilt or innocence. Id. at 339. Although the holdings of all these cases may be difficult to reconcile, we believe that they make it plain that the manner in which the prosecution secured the indictment in the present case cannot serve as the basis for a dismissal. Reading transcripts of sworn testimony, rather than presenting live witnesses, simply does not constitute, on the facts of this ease, “fundamental unfairness” or a threat to “the integrity of the judicial process.” The prosecutor advised the third grand jury that witnesses Lewis and Trawick had previously made statements inconsistent with their grand jury testimony. Further, their testimony in the transcripts read to the third grand jury contained confessions that they had submitted false affidavits. In light of our decision in Loraine, these facts reinforce our conclusion that dismissal is not warranted. Also, even if we were inclined to follow the Second Circuit’s rule regarding the use of hearsay, which we are not, we could not uphold the dismissal. Even if live witnesses had been readily available to" }, { "docid": "12658203", "title": "", "text": "violation of his fifth amendment right to indictment by grand jury. The motion was denied, and then the government, apparently having located Caputo, moved to abandon and dismiss the superseding indictment and to proceed to trial on the original indictment. The government’s motion was made on the morning of trial. Defendant objected to proceeding to trial on the original indictment. The district court sustained the objection and required defendant to be tried on the superseding indictment. Before us, defendant contends that the indictment on which he was tried and convicted was invalid because it was based solely on hearsay evidence. He cites United States v. Arcuri, 282 F.Supp. 347 (E.D.N.Y.1968), aff’d, 405 F.2d 691 (2 Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969), and United States v. Estepa, 471 F.2d 1132 (2 Cir. 1972), in support of his argument. We see no occasion, however, to decide defendant’s contention on its merits. The fact is that the superseding indictment differed from the original indictment only in omission of the allegations which depended upon the testimony of Caputo. No claim could be made that the original indictment was returned solely on hearsay evidence. The allegations in the superseding indictment had initially been made on the basis of testimony which was admissible under strict rules of evidence by witnesses who appeared before the grand jury, who were subject to questioning, and whose demeanor and credibility could be judged. More importantly, defendant was given the option of proceeding to trial on the original indictment, the validity of which he could not and did not challenge. He declined to exercise this right. We hold, therefore, that on the special circumstances of this case defendant waived his right to complain about the hearsay basis of the superseding indictment on which he was tried, even if as an abstract proposition of law his contention might otherwise be meritorious. II. Before charging the jury, the trial judge held a conference in chambers with counsel for defendant and the government to hear argument on requested jury instructions and, in accordance with Rule 30," }, { "docid": "23274200", "title": "", "text": "justice. United States v. Russano, supra, at 716. See Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950). Accordingly, we remand for further proceed ings in conformity with this opinion. Kotteakos v. United States, supra, 328 U.S. at 777, 66 S.Ct. 1239. Should the Government decide to retry this case on the basis of the existing indictment, the District Court will have the benefit both of our decision and the trial record in deciding appropriate motions to sever. See United States v. Miley, supra, at 1209-1210. III. OTHER ISSUES Since a retrial is probable, we express our views on several additional issues which have been raised. Appellants contend that the superseding indictment, 75 Cr. 5, was invalid. On January 6, 1975, the day the trial was set to begin, the Government discovered that the grand jury testimony of Albert Rossi used to obtain Indictment 74 Cr. 620 made no mention of defendant Raymond Thompson. Accordingly, the Government went before a second grand jury to obtain a superseding indictment. Rossi again testified but, instead of reiterating his previous testimony, merely supplemented it. Accordingly, his testimony named only ten of the indicted defendants and occupied less than three pages of transcript. Appellants contend that the second grand jury never considered the earlier testimony of Rossi and that, therefore, the denial by the trial judge of the motion to dismiss the indictment as based on insufficient evidence was erroneous. Our review of the transcript of Albert Rossi’s January 6th testimony reveals that the transcripts of his prior testimony were both identified by him and presented to the grand jury as exhibits. In any event, “an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate . . . evidence.” United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974). While certain situations permit us to dismiss indictments in the exercise of our supervisory powers where we deem it wise, United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972)," }, { "docid": "22909722", "title": "", "text": "1973 was based in substantial part on the testimony of John Housand, the government’s key witness in the first trial. After Housand admitted giving false testimony during the trial with respect to psychiatric treatment he had received in the past, the convictions resulting from the first trial were vacated and a new trial ordered, but the original indictment was left undisturbed. Appellants contend that the prosecutor was under a duty to seek a new indictment untainted by Housand’s testimony and that his failure to do so is cause for dismissal. An indictment returned by a legally constituted and unbiased grand jury generally is not subject to attack on the ground that it is based on inadequate or incompetent evidence. United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 391 (1956). The government, however, is subject to certain restrictions on its relationship with the grand jury and the type of evidence it may present to obtain an indictment. See United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir. 1974); United States v. Gallo, 394 F.Supp. 310, 315 (D.Conn.1975). For example, where the government knows that perjured testimony has been given to the grand jury and that this testimony is material to the grand jury’s deliberations, due process requires that the prosecutor take such steps as are necessary to correct any possible injustice. United States v. Basurto, supra. Where jeopardy has not yet attached, it generally is proper for the prosecutor to return to the grand jury and seek a new indictment untainted by the perjury. Application of these principles to the facts of the case at bar, however, convinces us that the trial court did not err in refusing to dismiss the original indictment. Housand perjured himself during the first trial in denying ever having received psychiatric treatment or using certain aliases, but these issues were never explored in his testimony before the grand jury. There is no evidence therefore that Housand actually committed perjury during his grand jury appearance. The" }, { "docid": "12658202", "title": "", "text": "he would be unavailable for trial. Thereupon the government requested and was granted a continuance in order to seek a superseding indictment from the grand jury in which all references to acts which could be proved only by the testimony of Caputo were stricken. The district court directed that any superseding indictment be served on defendant by September 6, 1972, and fixed September 18 as the date for trial. The superseding indictment (Criminal No. 72-0464-M) was returned on September 5, 1972, just before the term of the then existing grand jury was about to expire. It was obtained on the testimony of a special agent of the Treasury Department who had no firsthand knowledge of the matters on which the indictment was requested, and his testimony appears to have been a hearsay statement of the evidence which had been presented to the grand jury which had returned the original indictment. Gregorio moved to dismiss the superseding indictment on the ground, inter alia, that it had been returned solely on the basis of hearsay evidence in violation of his fifth amendment right to indictment by grand jury. The motion was denied, and then the government, apparently having located Caputo, moved to abandon and dismiss the superseding indictment and to proceed to trial on the original indictment. The government’s motion was made on the morning of trial. Defendant objected to proceeding to trial on the original indictment. The district court sustained the objection and required defendant to be tried on the superseding indictment. Before us, defendant contends that the indictment on which he was tried and convicted was invalid because it was based solely on hearsay evidence. He cites United States v. Arcuri, 282 F.Supp. 347 (E.D.N.Y.1968), aff’d, 405 F.2d 691 (2 Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969), and United States v. Estepa, 471 F.2d 1132 (2 Cir. 1972), in support of his argument. We see no occasion, however, to decide defendant’s contention on its merits. The fact is that the superseding indictment differed from the original indictment only in omission of the allegations" }, { "docid": "13199833", "title": "", "text": "Violation Before The Grand Jury It is well settled that hearsay is admissible before the grand jury. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408-09, 100 L.Ed. 397 (1956). A prosecutor’s reliance on hearsay may be grounds for dismissal of an indictment if the grand jury was misled or misinformed. Brito, 907 F.2d at 394. As has been noted several times in this circuit, [t]he use of hearsay testimony before the grand jury raises questions about the validity of an indictment only when the prosecutor misleads the grand jury into thinking it is getting first-hand testimony when it is really receiving hearsay, ... or where there is a high probability that if eyewitnesses rather than hearsay testimony had been used, the defendant would not have been indicted. United States v. Diaz, 922 F.2d 998, 1005-06 (2d Cir. December 27, 1990) (quoting United States v. Dyman, 739 F.2d 762, 767 (2d Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 969, 83 L.Ed.2d 973 (1985)). In this case, the defendant argues that the prosecutor’s presentation of a single hearsay witness before the grand jury when first-hand testimony was readily available resulted in the grand jury being misinformed as to the actual evidence in the case. The defendant argues that this excessive reliance on hearsay, especially given the Brito decision, constitutes a violation before the grand jury that “substantially influenced the grand jury’s decision to indict,” and raised a “grave doubt that the decision to indict was free from the substantial influence” of the violation. Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374-75. To bolster this contention, the defendant points out that there were several inconsistencies between Agent Cucinelli’s hearsay testimony before the grand jury regarding Felton, which consists of only six lines in the grand jury transcript, and Detective Fagan’s testimony concerning Felton at trial. The government argues that the presentation of hearsay testimony to the grand jury is perfectly appropriate as long as the grand jury is not misled as to the facts of the case or the quality of the proof it" }, { "docid": "3840335", "title": "", "text": "(1956); United States v. Akin, 464 F.2d 7, 8 (8th Cir.), cert. denied, 409 U.S. 981, 93 S.Ct. 315, 34 L.Ed.2d 244 (1972). Finally, we note that the fact that the first grand jury failed to indict appellants is not in and of itself legally significant. United States v. Gross, 416 F.2d 1205, 1210 (8th Cir. 1969), cert. denied, 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427 (1970) (failure by two previous grand juries to indict did not bar later indictment by third grand jury). In our view the evidence submitted in support of the motions to quash was not adequate to bring this case within the narrow and limited situations in which a defendant may successfully attack the indictment. The affidavit accompanying the motions to quash did not contain allegations that the jury was illegally constituted; that the indictment was invalid on its face; that the indictment was obtained as a result of prosecutorial misconduct, see United States v. Gallo, 394 F.Supp. 310 (D.Conn.1975); or that the trial court amended the original indictment so as to permit appellants to be tried on different charges, see Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). The record of the in camera proceedings discussed previously further supports our conclusions. At the hearing the district judge diligently inquired into the proceedings of both grand juries, particularly the second one. The transcript of the testimony in the in camera hearing was sealed and forwarded to this court. Our examination of the transcript persuades us that neither the United States Attorney nor his assistant, both of whom testified under oath, pressured the grand jury for an indictment and that no deception or misrepresentations were made to induce the grand jury to act. The transcript shows that three government employees who had made an extensive investigation testified before the second grand jury as to every count in the indictment, that copies of the “majority” of the documentary evidence were available to the second grand jury, and that the second grand jury was informed that the first grand jury had" }, { "docid": "3876723", "title": "", "text": "a second indictment August 7, 1973. This time paragraph two of Count One alleged that the Jacob Banking Company money orders were counterfeited, but in other material respects the two indictments were identical. By appropriate motion appellant raised below, and raises here, as the sole ground of his appeal, the constitutionality of the procedure attendant upon the return of the second indictment. He asserts that no witnesses testified before the second grand jury, but rather that the prosecutor merely explained to the jury members the nature of the problem with the first indictment, related in summary unsworn hearsay form, the testimony before the first grand jury, and thereupon secured the second indictment. The government brief on appeal does not deny that this was so. Impliedly the claim is admitted. An indictment may rest upon hearsay, Costello v. United States, 1956, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, and we see no problem if government agents did in fact give sworn testimony before the second grand jury as to what they and other witnesses had stated to the first grand jury. But informal unsworn hearsay from the mouth of the prosecutor only is something else altogether. This, we think, is interdicted by the Fifth Amendment. Cf. United States v. Dunham Concrete Products, Inc., 5 Cir. 1973, 475 F.2d 1241, 1248-1249, citing United States v. Tane, 2 Cir. 1964, 329 F.2d 848, 853-854 (indictment must be based on competent evidence) Because the briefs and record in this case leave us uncertain as to the actual procedure followed before the subsequent grand jury which returned the second and superseding indictment against the appellant, we employ here the limited remand procedure used by the Supreme Court in Alderman v. United States, 1969, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176. Cf. United States v. DeVoe, 5 Cir. 1974, 489 F.2d 158. We direct the trial judge to conduct an evidentiary hearing for the purpose of determining whether the grand jury which returned the second indictment against appellant received sworn testimony from someone other than the prosecutor. The hearing should be conducted" }, { "docid": "23227753", "title": "", "text": "beginning with U. S. v. Umans, 368 F.2d 725 (2d Cir. 1966) and most recently discussed in U. S. v. Gallo, supra. As the government points out the relevant test of these Second Circuit cases is found in U. S. v. Estepa, 471 F.2d 1132 (2d Cir. 1972). In Estepa the court dismissed an indictment where the sole witness before the grand jury had been a government agent whose observations of the transaction in question were limited and remote. The undercover agent who participated appreciably in the events charged as criminal was never called. The United States Attorney presenting evidence to the grand jury in that case never mentioned this limited role of the witness who testified as if he had been a participant. The Court said that the test was whether the grand jury was misled into believing that it received first-class “merchandise” when they were actually presented “shoddy” hearsay testimony. In addition, the test requires a finding of a high probability that the grand jury would not have indicted had the percipient witness testified. In U. S. v. Gallo, supra, the court dismissed an indictment where the prosecutor presented a grand jury only with a transcript of previous grand jury testimony which he knew to be perjured in material part without informing the jurors of this fact. The case at bar is not comparable to these situations. The defendants’ argument that the grand jury would not have returned an indictment is extremely speculative. It rests on the conjunction of a number of factors, which the Court has already determined not to have been improper. There is no “strain of falsehood” hanging over these proceedings as there was in Gallo. Nor is there any reason to suppose that the jurors were misled about the nature of the testimony they heard. Instead there are several very serious questions which the jury must resolve about whether certain events were crimes and, if so, whether these defendants were responsible for them. The Court is satisfied that the defendants did have the benefit of a determination of probable cause by a duly constituted" }, { "docid": "22761229", "title": "", "text": "jury returned two indictments — original and superseding. It is not clear from the district court’s order whether its examination of the evidence presented to the “second” grand jury was limited to review of the evidence presented with respect to the issuance of the superseding indictment. In his motion for disclosure, Grant stated that the Government had informed him that the transcripts of the testimony and evidence that had been presented to the first, non-indieting grand jury had been “reviewed” for the second, indicting grand jury. This Court in United States v. Malatesta, supra, 583 F.2d 748, confronted a Rule 6(e)-problem similar to the instant one. In that case a grand jury returned an indictment based in part upon testimony that had been given to a prior grand jury. The defendants sought dismissal of the indictment because the prosecutor disclosed the prior grand jury material to the successor grand jury without first obtaining a court order in violation of Fed.R.Crim.P. 6(e), which prohibits disclosure of matters occurring before the grand jury except when it is directed by the court, is made to the attorneys for the government for use in the performance of their duties, or is made to government personnel deemed necessary to assist an attorney for the government in performance of his duty to enforce federal criminal law. Id. at 752. The Malatesta Court recognized that [t]he real problem in later disclosure to another grand jury may lie in possible prosecutorial abuse, such as the use of selected portions of the testimony, or the presentation of a transcript when the witness in person would be unimpressive. So long as the defendant is prevented from discharging the grand jury’s minutes, Pittsburgh Plate Glass Co. v. United States, [360 U.S. 395, 79 S.Ct. 1230, 3 L.Ed.2d 1323 (1959)], and United States v. Procter & Gamble Co., [356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)], the prosecutor’s actions remain virtually unchecked. Even court scrutiny after the fact may not always be effective. Id. at 753. The Mal atesta Court held that, although a court order should have been obtained" }, { "docid": "1225516", "title": "", "text": "allegedly false claim brought against the United States in the Court of Claims by a corporation and several of its officers. The Government neither prepared nor requested an indictment. None was returned. Before a second grand jury in October 1975, the Government agent summarized the testimony presented at the previous grand jury and answered questions. The district court dismissed the indictment for two reasons. First, there had been no reporter at the proceedings. Second, the Government had made no effort to procure nonhearsay testimony. Before á third grand jury in April 1976, with a court reporter present, the Government read the transcripts from the first grand jury — the transcript of one of the witnesses was deleted. Id. at 1308 n. 1. The agent once again appeared, presented the documentary evidence, and answered questions. The grand jury returned a true bill. Once again the district court dismissed the indictment because of the extensive hearsay. The court of appeals reversed for two reasons, First, Chanen presented no specific instance of prosecutorial indiscretion. Second, a supervisory rule was unacceptable. To delimit prosecutorial discretion in grand jury proceedings, the Chanen court contrasted the cases. Beyond permissible limits were United States v. Wells, 163 F. 313 (D.Idaho 1908) (prosecutor present during grand jury deliberations), and United States v. DeMarco, 401 F.Supp. 505 (C.D. Cal.1975) (penalizing statutory right to change venue by indicting on additional charges). Within the limits were United States v. Bruzgo, 373 F.2d 383 (3d Cir. 1967) (threatening grand jury witness and calling him a racketeer), Laughlin v. United States, 128 U.S.App.D.C. 27, 385 F.2d 287 (1967) (referring to another grand jury witness as a prostitute), Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128 (1962) (grand jury witness providing perjured testimony without the prosecutor’s knowledge), cert. denied 373 U.S. 946, 83 S.Ct. 1541; 10 L.Ed.2d 701 (1963), and Loraine v. United States, 396 F.2d 335 (9th Cir.) (wilful suppression of evidence undermining credibility of three crucial witnesses), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968). In light of these cases, the Chanen court could not say" } ]

[ { "docid": "22663961", "title": "", "text": "Bakery Workers, 370 U. S. 254, 260-263. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others), the employer is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action. We think that another situation when the employee may seek judicial enforcement of his contractual rights arises if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance. It is true that the employer in such a situation may have done nothing t& prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff’s benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice. We cannot believe that Congress, in conferring upon employers and unions the power, to establish exclusive grievance procedures, intended .to confer upon unions, such unlimited discretion to deprive injured employees of all remedies for breach of contract. Nor do we think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrongful union conduct in the enforcement of such agreements. Cf. Richardson v. Texas & N. O. R. Co., 242 F. 2d 230, 235-236 (C. A. 5th Cir.). For these reasons, we think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance. We may assume for" } ]

[ { "docid": "23473236", "title": "", "text": "the union member may timely file a grievance, he may properly claim that the union has breached its duty of fair representation in handling that grievance. And, so long as the issue of that breach of duty of fair representation is before the court, Butler holds that the breach of contract claim on which that grievance is based is timely raised. There is no indication here that the 1971 grievance was considered as not timely filed. Furthermore, the applicable collective bargaining agreements do not state any time limit for filing grievances. Since the plaintiffs’ claims emanate from the denial of the 1971 grievance, they are not barred by the statute of limitations. II. STATUS OF BREACH OF CONTRACT CLAIMS There can no longer be any doubt that where the parties to a collective bargaining agreement provide therein for binding arbitration of disputes between the employee and employer, the employee cannot sidestep that grievance machinery. Unless he has attempted to utilize the contractual procedures for settling his dispute with his employer, his independent suit against the employer will be dismissed. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614,13 L.Ed.2d 580 (1965); Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Only when the union has breached its duty of fair representation to the union member may that member bypass the collective bargaining agreement procedure and proceed against the employer for the breach of contract claim. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The Supreme Court of the United States in Hines, supra, faced the issue of what measure of finality would be given to the grievance procedure when a dissatisfied union member alleges a breach of the duty of fair representation by the union. The court said: * * * In our view, enforcement of the finality provision where the arbitrator has erred is conditioned upon the union’s having satisfied its statutory duty fairly to represent the employee in connection with" }, { "docid": "22840817", "title": "", "text": "before resorting to a court action. . . . Necessarily implied in this obligation is the duty to become aware of the nature and availability of union remedies. Newgent was not “justified in . relying on a statement by an officer that there was nothing he could do.” Id. at 927-28 (citations omitted). Accord, Kowalski v. Wisconsin Steel Works of Int’l Harvestor Co., 433 F.Supp. 314 (N.D.Ill.1977); Brookins v. Chrysler Corp. Dodge Main Division, 381 F.Supp. 563, 566 (E.D.Mich.1974). We conclude that the district court did not abuse its discretion in holding that Fristoe’s failure to exhaust intra-union remedies bars this action against the union. Summary Judgment in Favor of Reynolds. When a collective bargaining agreement provides that arbitration will be the exclusive remedy for employee grievances, an employee may not bring an action against the employer in lieu of seeking arbitration. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Courts have recognized an exception to this rule: when the employee can show that the union breached its duty of fair representation by failing to pursue arbitration, the employee’s action is not barred. Vaca v. Sipes, supra, at 186, 87 S.Ct. at 914. Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Because the instant agreement contained such a provision, Fristoe’s action against Reynolds is barred unless Fristoe can show that the union breached its duty of fair representation. We conclude that it did not and summary judgment for Reynolds was appropriate. Fristoe contends that the union’s decision not to seek arbitration constituted a breach of the union’s duty of fair representation. He must show, however, that the refusal to arbitrate was “arbitrary, discriminatory or in bad faith.” Vaca v. Sipes, supra, 386 U.S. at 190, 87 S.Ct. at 916. To decide whether the decision was indeed arbitrary, we need not ask whether Fristoe’s grievance was in fact legitimate. Our inquiry is limited to determining whether the union’s investigation of the allegations was arbitrary, discriminatory or in bad faith: [i]f a union’s decision that a particular grievance lacks sufficient" }, { "docid": "13322904", "title": "", "text": "not in good faith. Nor were the union’s actions clearly outside the scope of its authority, such as in Steele v. Louisville & N. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), where the contract provisions sought by the union were racially discriminatory on their face. The present case is different from the situation in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1966), and Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), where the employers were not permitted to raise as a defense the employees’ failure to exhaust contract grievance procedures in breach of contract suits against the employers where there was a showing of a breach of the union’s duty of fair representation with respect to its role in the grievance proceedings, even though the employers in no way participated in the union’s breach. In Vaca, supra 386 U.S. at 185-86, 87 S.Ct. at 914, the Supreme Court said: It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff’s benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice. We cannot believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer upon unions such unlimited discretion to deprive injured employees of all remedies for breach of contract. Nor do we think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrongful union conduct in the enforcement of such agreements. The majority opinion further stated that “[t]he governing principle . . . is to apportion liability between the employer and the union according to the damage caused" }, { "docid": "22186597", "title": "", "text": "the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach of contract suit under § 301, ... but a hybrid § 301/fair representation claim, amounting to a direct challenge to the private settlement of disputes under [the collective-bargaining agreement]” (citations and internal quotations omitted)); see Vaca, supra, 386 U.S. at 185-86, 87 S.Ct. 903 (“We think that another situation when the employee may seek judicial enforcement of his contractual rights arises, if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance. It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiffs benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our opinion, be a great injustice”). Here, the governing CBAs establish mandatory grievance procedures that must be followed by employees asserting a violation of the terms of the agreements. It is undisputed that Soremekun did not exhaust these contractual procedures; no official grievance form was filed, no formal grievance meeting was held, and no arbitration proceeding was initiated. So-remekun contends, however, that his failure to exhaust contractual remedies must be excused because the Union never gave him a copy of the CBAs, neglected to advise him of the need to file an official grievance form, and arbitrarily dismissed his complaints in violation of its duty of fair representation. These allegations regarding the Union, however, do not appear in Soremekcun’s first amended complaint. Having failed to include the allegations in his complaint, Soremekun cannot" }, { "docid": "18895120", "title": "", "text": "to exhaust his intra-union remedies as to the processing of his discharge grievance. As Judge Feikens stated, in Willie Brookins v. Chrysler Corporation, The United Auto Workers of America and Dodge Local No. 3, 381 F.Supp. 563, 567 (E.D.Mich.1974) As a general rule, ‘individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress’. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965) (emphasis, footnote omitted). However, ‘the employee may seek judicial enforcement of his contractual rights . if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance’. Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967) (emphasis omitted). Thus, ‘the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.’ Id. at 186, 87 S.Ct. [903] at 914. The crucial question then in determining whether Chrysler may be sued despite plaintiff’s failure to exhaust contractual grievance procedures is whether the union’s dismissal from the case (and the reasons therefor) leaves the plaintiff in a position to ‘prove that the union . breached its duty of fair representation.’ The key to resolving this issue is the nature of the remedies which the employee must exhaust. If they were before an administrative agency it would seem logical to conclude that it would be the remedy and not the wrong itself which the exhaustion doctrine would deny. But where the required procedures are those available from the allegedly offending union itself, and pursuit of them ‘could result in a reversal of the Union’s action in refusing to process" }, { "docid": "16302992", "title": "", "text": "to a breach of the duty of fair representation is Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1966). In Vaca the Supreme Court held that: A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Id. at 190, 87 S.Ct. at 916. Moreover, in applying this standard, the Court further noted: Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. Id. at 191, 87 S.Ct. at 917. In the instant case, the complaint does not allege bad faith, rather, the allegations in; the complaint claim that the union acted in “deliberate, willful and knowing violation of their duty to plaintiff union-member.” Paragraph 24, Plaintiff’s Complaint. In essence, plaintiff’s claim as also found in paragraph 22 of the complaint is that the union breached its duty of fair representation because it failed and refused to process his grievance relative to benefits under Section 20, as amended. The issue before this court on these motions for summary judgment is whether these allegations, as a matter of law, in light of the undisputed facts before the court, constitute a breach of the union’s duty of fair representation. It should be noted at the outset that plaintiff stated in his deposition that he did not believe the union’s decision or action resulted from a personal animosity towards plaintiff, but, rather, the union officials who refused to process his grievance were “just doing their job.” Plaintiff’s Deposition, page 24. In Ruzicka v. General Motors, 523 F.2d 306 (6th Cir. 1975), this circuit interpreted the standards set forth in Vaca and concluded bad faith is not required to prove claims of breach of a duty of unfair representation, but that such a breach may be established by showing arbitrary" }, { "docid": "15109597", "title": "", "text": "similar claims, the appropriate allocation of limited resources for pursuing both individual and group claims, the maintenance of the Union’s bargaining power and the necessity of maintaining an effective continuing relationship with the employer. See Vaca, 386 U.S. at 182, 87 S.Ct. at 912; Humphrey, 375 U.S. at 341, 349-50, 84 S.Ct. at 367, 371-72; Cox, Rights Under a Labor Agreement, 69 Harv.L.Rev. 601 (1956); Note, Duty of Fair Representation: A Theoretical Structure, 51 Tex.L.Rev. 1119 (1973). In addition, the fair representation doctrine must be limited to avoid inappropriate interference with the National Labor Relations Board’s exclusive jurisdiction over unfair labor practices. Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). There are yet other interests to be considered because, in an employee’s § 301 action against his employer, proof of breach of the union’s duty can operate to reactivate a grievance otherwise barred by the collective bargaining agreement or reopen an otherwise final and binding arbitration award. The integrity of such private settlement procedures, which are central to our system of industrial relations, might be undermined if the fair representation doctrine is too broadly or freely applied in § 301 actions against employers. Thus, in response to this concern, the Court in Hines stated that proof of breach of duty by the union “involves more than demonstrating mere errors in judgment.” 424 U.S. at 570-71, 96 S.Ct. at 1059-60; See also United Parcel Service, Inc. v. Mitchell, - U.S. -, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). The task of properly balancing these interests is further complicated because the relative weight that each interest should be assigned may vary according to the union functions implicated by the employee’s particular claim. Thus, it may be appropriate to allow a union greater deference in negotiating a collective bargaining agreement, Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), than in performing largely ministerial functions of contract administration. See Robesky v. Qantas, supra; Ruzicka v. General Motors Corp., 523 F.2d 306 (6th Cir. 1976) (union failed to file papers in" }, { "docid": "23649681", "title": "", "text": "this duty. Vaca v. Sipes, 1967, 386 U.S. 171, 176-189, 87 S.Ct. 903, 909-916, 17 L.Ed.2d 842. Under the fair representation doctrine, “the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and avoid arbitrary conduct.” Id., 386 U.S. at 177, 87 S.Ct. at 910. Thus, the duty is defined by three distinct standards of conduct; a violation occurs “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id., 386 U.S. at 190, 87 S.Ct. at 916; see also Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 4th Cir. 1972, 469 F.2d 181. An employee’s action directly against his employer for breach of the collective bargaining agreement concluded between the employer and the union lies under the Labor Management Relations Act § 301, 29 U.S.C.A. § 185. Smith v. Evening News Association, 1962, 371 U.S. 195, 83 S.Ct. 267, 9 L. Ed.2d 246. The employer may defend such a suit on the grounds that the employee has failed to exhaust the remedies available to him'under the collective agreement, but this defense is not available if, as is true in this case, only the union has power to press the grievance beyond the initial stages of the contractual grievance procedure and if the union’s wrongful refusal to process his grievance prevents him from exhausting his contractual remedies. Vaca v. Sipes, supra, 386 U.S. at 185, 87 S.Ct. at 914. Thus, a union’s breach of its duty of fair representation may open the way not only to a suit against itself, but also against the employer. When both the employer and the union are sued, as in this case, the issue of the union’s breach of its duty of fair representation may be equally important for both defendants. The main thrust of the instant appeal by Ford and the Union concerns the district court’s instructions" }, { "docid": "16302996", "title": "", "text": "made by plaintiff that the union did not review the merits of his grievance before denying to process it under the terms of the grievance-arbitration provisions of the contract. Rather, the plaintiff claims that the union acted deliberately, wilfully and knowingly. In response, the union concedes that it acted deliberately, willfully and knowingly, but that it did so on the basis of the belief that the employer was not violating the new contract, effective June 18, 1974, and thus plaintiff’s grievance was not meritorious. Instead of aiding in the establishment of a breach of the duty of fair representation by the union, plaintiff’s allegations that the union declined to process his grievance after knowing deliberation, under the standard laid down in Ruzicka, precludes a finding by this court that the union breached its duty of fair representation. The union reviewed the merits of plaintiff’s grievance and concluded that it was not meritorious. If the union made a wrong decision, no duty could be said to have been breached under the standards established in either Vaca or Ruzicka. A union does not breach its duty of fair representation as a result of a decision not to process a grievance based on its merits, but a breach of the duty, under the Vaca and Ruzicka standards, exists only where such a refusal to process a grievance is made in an arbitrary and perfunctory manner irrespective of the merits of the grievance. Thus, there is no substance to plaintiff’s claim that the union breached its duty of fair representation in this case under either Vaca or the purportedly more liberal standard in Ruzicka. In light of the court’s disposition of the issues of exhaustion of intra-union remedies and the union’s breach of its duty of fair representation, it is unnecessary to further decide whether the benefits claimed under Section 20 of the old contract are vested rights which may not be bargained away by the union through negotiations with the employer. Consistent with the reasoning and conclusions set forth in this Opinion, Plaintiff’s Motion for Summary Judgment is denied and Defendants’ Motions for" }, { "docid": "11780505", "title": "", "text": "1559, 67 L.Ed.2d 732 (1981). The interdependency arises from the nature of the collective bargaining agreement. If the arbitration and grievance procedure is the exclusive and final remedy for breach of the collective bargaining agreement, the employee may not sue his employer under § 301 until he has exhausted the procedure, Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). Further, he is bound by the procedure’s result unless he proves the union breached its duty of fair representation. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). Thus, the “indispensable predicate” for a § 301 action in this situation is a fair representation claim against the union. Mitchell, 451 U.S. at 62, 101 S.Ct. at 1564. As the Supreme Court stated in DelCostel-lo: 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 breach of duty by the Union. The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. 462 U.S. at 166, 103 S.Ct. at 2291 (citations omitted). In essence the hybrid § 301/fair representation suit is brought “in order to set aside a final and binding determination of a grievance, arrived at through the collectively bargained method of resolving the grievance. It is, therefore, a direct challenge to the private settlement of disputes under the collective bargaining agreement.” Mitchell, 451 U.S. at 67, 101 S.Ct. at 1566 (Stewart, J., concurring); DelCos-tello, 462 U.S. at 166, 103 S.Ct. at 2291. On the other hand, if the collective bargaining agreement does not provide that the grievance and arbitration procedure is the exclusive and final remedy for breach of contract claims, the employee may sue his employer in federal court under § 301, Vaca v. Sipes, 386 U.S. 171, 183, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967), and the state statute of limitations applicable to" }, { "docid": "22954584", "title": "", "text": "duty of fair representation owed to the plaintiffs by failing to file and prosecute plaintiffs’ claims through the grievance and arbitration procedures, and that the union had conspired with Continental Can to deprive the plaintiffs of their rights under the collective bargaining agreement. The union also moved for summary judgment. On July 27, 1983, the district court granted both defendants’ motions for summary judgment. As to the union, the court held that plaintiffs’ claims were barred by the applicable six-month statute of limitations. Plaintiffs do not appeal that decision. As to the Company, the district court held that notwithstanding the state law fraud claims, the plaintiffs’ complaints fell within the scope of the grievance and arbitration provisions. The court determined that it was “incumbent upon plaintiffs to attempt, unless otherwise excused, to present their complaints concerning ‘fraud’ and breach of some ‘contract’ other than the collective bargaining agreement through the grievance mechanism____” The court considered and rejected plaintiffs’ arguments that they were excused from resorting to those procedures because it would have been futile. The court went on to find that an exhaustion of remedies requirement barred plaintiffs’ ERISA claims because they had not invoked the arbitration procedures provided by the pension plan agreement. Exhaustion of Remedies Under Collective Bargaining Agreement Employees claiming breach of a collective bargaining agreement or wrongful termination of employment by their employer are bound by that agreement’s terms providing a method for resolving disputes between them and their employer. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 184-85, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967). When employees asserting an arbitrable grievance have not attempted to utilize the dispute resolution machinery available to them under the agreement, their independent suit against the employer must be dismissed. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). It is undisputed that the plaintiffs have never initiated a grievance against Continental Can concerning the closing of Plant No. 411 or any misrepresentations made prior" }, { "docid": "2608117", "title": "", "text": "and (b) if failure to join will subject defendant to the possibility of multiple liability. In the present case, no such likelihood of multiple liability exists, for only defendant can be liable to plaintiffs for a breach of duty of fair representation. Since it is impossible, in the present context, for any other party to be held liable to plaintiffs under this theory, no other party could later seek indemnity or contribution against defendant. For this reason, I find no merit in defendant’s contention that trial on the merits proceeded in violation of Rule 19. F. Exhaustion of Remedies. Defendant lastly contends that plaintiffs should be barred from proceeding with this action because of a failure to exhaust available contractual and intra-union remedies. Defendant argues that the Pension Agreement set out grievance procedures which no plaintiff utilized. Further, defendant maintains that in asserting this claim against the union, plaintiffs should have pursued intra-union remedies available to them under Article 33, Section 13 of the UAW Constitution. 1. Contractual Remedies. Defendant’s contention that plaintiffs should have filed a grievance with the Pension Board for failure to monitor the trust fund totally lacks merit. As already stated, there was no knowledge of a deficit until mid-1971, at which time Lakey was nearly bankrupt. Exhaustion of remedies in such a context would have been wholly futile, and pursuance of futile remedies is not required. See, Geddes v. Chrysler Corp., 608 F.2d 261 (6th Cir. 1979); Ruzicka v. General Motors Corp., 523 F.2d 306 (6th Cir. 1975). Moreover, exhaustion is not required where an employer has repudiated its willingness to comply with contract provisions. See, Beriault v. Local 40, Super Cargoes & Check. of I.L.&W.U., 501 F.2d 258 (9th Cir. 1974). Lakey’s refusal to make obligatory contributions to the Pension Plan is a repudiation which excuses plaintiffs’ failure to pursue contractual remedies. 2. Intra-Union Remedies. Defendant additionally contends that plaintiffs’ claims are barred because they failed to pursue available intra-union remedies before bringing suit in federal court. This “exhaustion doctrine” was first applied by the Sixth Circuit in Bsharah v. Eltra Corp., 394 F.2d" }, { "docid": "22186596", "title": "", "text": "interests, it must be the duty of the representative organization ‘to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct,’ ” quoting Vaca, supra, 386 U.S. at 177, 87 S.Ct. 903). An employee can support an action for breach of the collective bargaining agreement, brought solely against the employer, by showing that the union violated its duty of fair representation. In such a case, the employee bears the burden of proving two claims — first, that the employer breached the collective bargaining agreement, and second, that the labor union breached its duty of fair representation. See DelCostello, supra, 462 U.S. at 165, 103 S.Ct. 2281 (“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. The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach of contract suit under § 301, ... but a hybrid § 301/fair representation claim, amounting to a direct challenge to the private settlement of disputes under [the collective-bargaining agreement]” (citations and internal quotations omitted)); see Vaca, supra, 386 U.S. at 185-86, 87 S.Ct. 903 (“We think that another situation when the employee may seek judicial enforcement of his contractual rights arises, if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance. It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that" }, { "docid": "22815281", "title": "", "text": "the instant case in the following two respects. First, Clayton involved a suit by an employee for an alleged violation of a union’s duty of fair representation when processing the employee’s grievance, wherein the employee had previously exhausted the administrative procedures established under the collective bargaining agreement. Clayton dealt solely with the question of whether “exhaustion of internal union procedures” was necessary in a case alleging a union’s breach of its duty of fair representation. Id. at 687, 101 S.Ct. at 2094. (emphasis in original). In fact, the court expressly stated that the general rule remains: “An employee seeking a remedy for an alleged breach of the collective bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under § 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a). Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-653 [85 S.Ct. 614, 616, 13 L.Ed.2d 580] (1965); see Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563 [96 S.Ct. 1048, 1055, 47 L.Ed.2d 231] (1976); Vaca v. Sipes, 386 U.S. 171, 184 [87 S.Ct. 903, 913, 17 L.Ed.2d 842] (1967).” Thus, even under Clayton, exhaustion of remedies is the general rule, with a very limited exception being applicable in a breach of fair representation case where an employee has previously exhausted the procedures established by the collective bargaining agreement and the employee can prove that resort to the intra-union procedures would be a-“useless gesture.” Id. at 693, 101 S.Ct. at 2097. In the instant case, the plaintiff Kross has failed to take the first step of exhausting his remedies before the Employees’ Benefit Committee. Thus, we agree with the district court that the exhaustion doctrine is applicable to the plaintiff’s claim that Western Electric discharged him from his employment to prevent his service pension from vesting. Second, the Supreme Court in Clayton did not set forth an absolute rule that exhaustion will be excused in cases in which the relevant administrative procedure" }, { "docid": "2608118", "title": "", "text": "filed a grievance with the Pension Board for failure to monitor the trust fund totally lacks merit. As already stated, there was no knowledge of a deficit until mid-1971, at which time Lakey was nearly bankrupt. Exhaustion of remedies in such a context would have been wholly futile, and pursuance of futile remedies is not required. See, Geddes v. Chrysler Corp., 608 F.2d 261 (6th Cir. 1979); Ruzicka v. General Motors Corp., 523 F.2d 306 (6th Cir. 1975). Moreover, exhaustion is not required where an employer has repudiated its willingness to comply with contract provisions. See, Beriault v. Local 40, Super Cargoes & Check. of I.L.&W.U., 501 F.2d 258 (9th Cir. 1974). Lakey’s refusal to make obligatory contributions to the Pension Plan is a repudiation which excuses plaintiffs’ failure to pursue contractual remedies. 2. Intra-Union Remedies. Defendant additionally contends that plaintiffs’ claims are barred because they failed to pursue available intra-union remedies before bringing suit in federal court. This “exhaustion doctrine” was first applied by the Sixth Circuit in Bsharah v. Eltra Corp., 394 F.2d 502 (1968), wherein the court upheld summary judgment dismissal of plaintiff’s claims against an employer and the UAW because plaintiff failed to first pursue a grievance. The decision follows from the earlier Supreme Court ruling in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), that employees are precluded from maintaining breach of contract suits against employers before first utilizing contractually-agreed-upon grievance machinery. The exhaustion requirement has been continuously restated and affirmed, even in cases brought only against labor organizations and arising out of an alleged breach of fair representation. Generally, courts which have adopted this rule have stressed its salutary goal of encouraging private settlement of disputes, protecting union autonomy, and preserving scarce judicial resources. While federal courts have almost unanimously required a preliminary attempt to exhaust intra-union remedies, few courts have decided on whom the burden of pleading and persuasion exists. In Sedlarik v. General Motors Corp., 54 F.R.D. 230 (W.D.Mich.1971), Judge Engel stated, at 233: “[I]t is incumbent upon the plaintiff as a condition to his" }, { "docid": "16302984", "title": "", "text": "benefits under Section 20. The union provided the plaintiff with the appropriate information and a grievance was submitted by plaintiff to the union for processing. The union refused to process the grievance, however, because in the judgment of the union officials, it was not a meritorious grievance since the defendant company was clearly complying with the terms of amended Section 20. No further action was taken by plaintiff at either the local or international union level to review the initial union decision not to process his grievance, although review procedures are provided in the International Union Constitution, Article XIX, Constitution of the International Brotherhood of Teamsters (1971). Thereafter, this lawsuit was commenced to challenge the union’s right to refuse to process plaintiff’s grievance and the company’s right to refuse to pay benefits under Section 20 of the contract. The collective bargaining agreement provides a procedure for resolving disputes of this nature. This procedure includes a comprehensive grievance-arbitration mechanism culminating in final and binding arbitration. The United States Supreme Court has held that such grievance and arbitration procedures, voluntarily entered into by the parties, should serve as the exclusive remedy for breach of contract claims. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903,17 L.Ed.2d 842 (1966); see also Willetts v. Ford Motor Co., 93 LRRM 2832 (E.D.Mich.1976). Thus, in the ordinary course of events, contract disputes must be resolved through the procedures provided by the parties themselves and resort to the federal judicial process is inappropriate. However, as the Supreme Court also noted in Vaca, supra, under some circumstances there is an exception to the exclusive remedy of the grievance-arbitration procedure. Where the union is given the sole power to act under the grievance-arbitration provision of the contract and the union has wrongfully refused to process the employee’s grievance, the Court held that the employee may seek judicial enforcement of his contract rights. In other words, an employee may only seek judicial enforcement of contract rights where the union has breached its duty of fair representation in processing the employee’s grievance through the grievance-arbitration procedure. As an initial matter, however," }, { "docid": "5238038", "title": "", "text": "exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures.” Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967). However, the district court did not rely on failure to exhaust contractual remedies in granting summary judgment to the plaintiffs, though that may be an important issue on remand, since if there was an adequate and exclusive grievance procedure available to the employees which they might have utilized, absent a showing of bad faith handling of their claim by the union they would be barred any relief. Vaca v. Sipes, supra, 185, 87 S.Ct. 903. Since the sole ground upon which the district court granted summary judgment to both the defendants was the failure of the plaintiffs to use any of the intraunion remedies set out in the UAW constitution, we turn our attention to that issue. Exhaustion of intraunion remedies stands upon a slightly different footing than exhaustion of grievance procedures set out in a collective bargaining contract. Grievance procedures are normally agreed to by the employer, the union and the employee-member as the exclusive remedy for the resolution of any grievance concerning an employee’s working conditions. National Agreement, Engineering, section 19, the collective bargaining agreement which governs the parties in this case, is an example of such an agreement. The employee is therefore barred from pursuing a claim against the employer without utilizing the grievance procedure, if it is otherwise available, unless he or she can establish that the union failed in its duty to provide fair representation. The intraunion remedies, on the other hand, are part of a separate membership agreement between the union and the member; the employer has no interest in the agreement and has no right to rely on its provisions in seeking dismissal of a claim against the employer. Fizer v. Safeway Stores, Inc., 586 F.2d 182 (10th Cir. 1978). We therefore hold that the district court was incorrect in dismissing the claims against Chrysler because of failure to exhaust intraunion remedies. The Claims Against the" }, { "docid": "8919313", "title": "", "text": "result of handicap discrimination. This is simply not enough to overcome the heavy burden set forth in Vaca v. Sipes, supra. C. THE INTER-DEPENDENCY OF § 301 BREACH OF CONTRACT AND FAIR REPRESENTATION CLAIMS 12. Now that this Court has determined that the defendant Unions did not breach the statutory duty of fair representation, the question that arises is what effect, if any, this has on plaintiff’s right to sue Southwestern Bell for alleged breach of contract. 13. Generally, when a collective bargaining agreement establishes a mandatory, binding grievance procedure and gives the Union the exclusive right to pursue claims on behalf of aggrieved employees, the results obtained by the union are normally conclusive of the employee’s rights under the agreement. See, e.g. Hines v. Anchor Motor Freight, Inc., 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 policy behind this doctrine is that when a dispute arises within the scope of the collective bargaining agreement, the parties are relegated to the remedies which they provided in their agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). In such cases, where the Collective Bargaining Agreement provides the exclusive remedy, the employee’s right to sue his employer or his union or both is very limited, and in order to recover he must prove both that the union breached its duty of fair representation and that the employer breached the collective bargaining agreement. See e.g., Vaca, 386 U.S. at 171, 87 S.Ct. at 903. Thus, the “indispensable predicate” for a § 301 action in this situation is a fair representation claim against the union. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 62, 101 S.Ct. 1559, 1563, 67 L.Ed.2d 732 (1981). 14. The opposite is true, however, when the collective bargaining agreement does not provide that the grievance and arbitration procedure is the exclusive and final remedy for breach of contract claims. In these situations, the employee’s right to sue his employer in federal court under § 301 is" }, { "docid": "23341900", "title": "", "text": "breach of the duty of fair representation. On appeal and cross-appeal, this court reversed and remanded, rejecting the district court’s incorporation of bad faith as an essential element of unfair representation: “We do not find the duty of fair representation so limited. In Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967), the Supreme Court held that union actions which are “arbitrary, discriminatory, or in bad faith” could establish a breach of the duty of fair representation.... We believe that the district court misread Faca when it held that “bad faith” must be read into the separate and independent standards of “arbitrary” or “discriminatory” treatment. Union action which is arbitrary or discriminatory need not be motivated by bad faith to amount to unfair representation.” Ruzicka v. General Motors Corp., 523 F.2d 306, 309-10 (6th Cir. 1975), reh. denied, 528 F.2d 912 (6th Cir. 1975). (Ruzicka I.). We also granted summary judgment in favor of the unions based upon their cross-claim against General Motors seeking arbitration. The trial court was directed to order arbitration with the GM-UAW umpire while retaining jurisdiction, and if the National Agreement was interpreted to mean that GM was relieved of its contractual duties because of the union’s failure to follow grievance procedures, appropriate relief against Local 166 on the unfair representation claim could then be awarded. 523 F.2d at 315. On remand, the district court ordered the contractual merits of plaintiff’s discharge to be submitted to the umpire. The court did not direct that the umpire was first to be presented with the union’s claim that Ruzicka’s grievance was procedurally alive despite the untimely processing. The court reasoned that GM’s procedural defense— that the finality provision of the collective bargaining agreement barred the wrongful discharge claim — was dependent upon the outcome of plaintiff’s unfair representation claim against the union. Since that claim could only be determined by the court, the court would also be the appropriate authority for deciding whether the union’s conduct nullified the finality provision. The trial court relied upon the intervening decision of Hines v. Anchor" }, { "docid": "18895121", "title": "", "text": "his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.’ Id. at 186, 87 S.Ct. [903] at 914. The crucial question then in determining whether Chrysler may be sued despite plaintiff’s failure to exhaust contractual grievance procedures is whether the union’s dismissal from the case (and the reasons therefor) leaves the plaintiff in a position to ‘prove that the union . breached its duty of fair representation.’ The key to resolving this issue is the nature of the remedies which the employee must exhaust. If they were before an administrative agency it would seem logical to conclude that it would be the remedy and not the wrong itself which the exhaustion doctrine would deny. But where the required procedures are those available from the allegedly offending union itself, and pursuit of them ‘could result in a reversal of the Union’s action in refusing to process a grievance and a concomitant timely filing or reinstating of the grievance according to the provisions of the collective bargaining agreement’, Orphan v. Furnco Constr. Co., supra, 446 F.2d [795] at 801 [7 Cir.], the opposite is true. By exhausting his internal remedies the employee may be able to eliminate the very wrong of which he complains, not merely obtain a remedy therefor in another forum. If the union’s wrongful refusal to continue the grievance were reversed without prejudice to his rights, the employee would no longer have a cause of action for breach of the duty of fair representation, and consequently would have no right under Vaca to sue his employer for breach of contract. This conclusion is consistent with the national labor policy in favor of arbitration. Orphan v. Furnco Constr. Co., supra. See generally United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960);" } ]

[ { "docid": "5039626", "title": "", "text": "the decedent’s escape and avert a threat of harm to others. Deputy Glidden resorted to deadly force after his verbal commands and physical altercation did not subdue the decedent. Under the evidence in the record at the time of summary judgment, viewed in the light most favorable to the plaintiff, we conclude that the district court properly determined that the use of deadly force did not violate Chambers’ Fourth Amendment rights. Accordingly, we hold the district court properly granted qualified immunity to Deputy Glidden. B. Rule 59(e) Wells filed a Rule 59(e) motion based on newly discovered evidence. In her motion, Wells posits that the investigation was tainted from the beginning. She claims that there was a lack of fingerprint analysis, the gun found at the scene was planted, a cell phone found on the decedent’s body was planted at the scene of the burglary, and physical evidence contradicts Deputy Glidden’s statement that he shot the deceased while he was fleeing. In support of her claims, Wells attached over 50 exhibits. The district court reviewed the claims and denied the motion. To support a Rule 59(e) motion based on new evidence, “the movant must show either that the evidence is newly discovered or, if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.” Chery v. Bowman, 901 F.2d 1053, 1057 n.6 (11th Cir. 1990). This motion is not intended to “relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). We conclude from the record that the district court did not abuse its discretion in denying the motion. The district court addressed the three affidavits Wells submitted and found that none contained newly discovered evidence. One affidavit is from Wells, one is from the decedent’s cousin, and one is from the decedent’s sister, and all call into question whether Chambers was near the burglarized home at the time in question. However," } ]

[ { "docid": "4494631", "title": "", "text": "order to prevail on his motion, Miller must show that he had been unable to uncover the newly discovered evidence prior to the court’s summary judgment ruling. Rule 59(e) motions are not available to “introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to judgment.” Innovative Home Health Care, Inc. v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.1998) (internal citations omitted). Similarly, a Rule 60(b)(2) motion based on the discovery of new evidence must show (1) that the evidence was discovered after the court’s order, (2) that the movant exercised diligence to obtain the evidence before entry of the order, (3) that the evidence is not merely cumulative or impeaching, (4) that the evidence is material, and (5) that the evidence would probably have produced a different result. E.E.O.C. v. The Rath Packing Co., 787 F.2d 318, 331 (8th Cir. 1986). Under Rule 60(b)(3), Miller must also show that appellees engaged in some type of fraud, misrepresentation, or misconduct that prevented him from “fully and fairly presenting [his] case.” Sellers v. Mineta, 350 F.3d 706, 715 (8th Cir. 2003) Appellants had objected to Miller’s interrogatory as being overly broad, unduly burdensome, and unlikely to lead to the discovery of admissible evidence. Their objections and responses to Miller’s interrogatories were submitted by the end of January 2004, long before the discovery deadline of June 2, 2004 and the June 18, 2004 motion deadline. Miller nevertheless waited until June 3, 2004 to move to compel. That was the same day the district court issued its decision on the motions to exclude his expert testimony and for summary judgment (originally filed in early February). Miller does not explain why he failed to avail himself to available discovery remedies before the district court issued its order granting summary judgment to defendants or why he was unable to find an expert in onboard fire suppression systems for cotton pickers or the publicly available multidistrict litigation records prior to entry of that order. The multidistrict litigation records were publicly available in the" }, { "docid": "7381803", "title": "", "text": "4, 6 (W.D.N.Y.1995); Bartz v. Agway, Inc., 849 F.Supp. 166, 167 (N.D.N.Y.1994); Atlantic States Legal Found., 841 F.Supp. at 53. A Rule 59(e) motion can only be granted if the movant presents newly discovered evidence that was not available at the time of the trial, or there is evidence in the record that establishes a manifest error of law or fact. E.g., Cavallo, 3 F.Supp.2d at 225. The evidence must be “newly discovered or ... could not have been found by due diligence.” United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir.1983) (citation omitted); Atlantic States Legal Found., 841 F.Supp. at 56. Here, the record clearly indicates that plaintiff seeks to introduce evidence that could have been discovered through due diligence. Plaintiff was receiving medical treatment for the effects of sexual harassment since 1992. In addition, plaintiff testified about tests undertaken to see if she was suffering any heart problems (Tr. at 36-38). Ms. Adams also affirmed that she provided Mr. Jay with the medical record compiled by Dr. Jones (Item 40, Aff. of Sandra H. Adams). Evidence that was in the movant’s hands prior to the judgment being rendered is not newly discovered evidence. Potamkin Cadillac Corp., 697 F.2d at 493; Patel v. Lutheran Medical Center, 775 F.Supp. 592, 596 (E.D.N.Y.1991). Through due diligence, plaintiff would have been able to discover this information and present it at trial. Accordingly, plaintiffs Rule 59(e) motion is denied. CONCLUSION For the reasons set forth above, plaintiffs motion (Item 40) for a rehearing on the issue of damages, and permitting the taking of additional testimony is denied. So Ordered. . Mr. Jay appeared on plaintiff's behalf on February 3, 1998, at the behest of Sandra H. Adams, Esq. Ms. Adams, who first appeared on plaintiff's behalf on December 21, 1994, requested Mr. Jay’s assistance in litigating this matter because medical treatment she was receiving prevented her from fully and adequately representing her client (See Item 40, Aff. of Sandra H. Adams)." }, { "docid": "17416315", "title": "", "text": "losing party may seek relief from a judgment because of “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” As with Rule 60(b)(3) motions, the decision whether to grant relief lies within the sound discretion of the court. “To succeed on a motion for relief from judgment based on newly discovered evidence, our law provides that a movant must demonstrate: (1) that it exercised due diligence in obtaining the information; and (2) that the evidence is material and controlling and clearly would have produced a different result if present before the original judgment.” Moreover, “[t]he newly discovered evidence must be in existence at the time of trial and not discovered until after trial.” GUS has not made a sufficient showing. First, as the district court noted, the newly discovered evidence was not available at the time of trial: Parkin’s statement occurred in a hearing held on November 16, 2001, and Davis’s report was prepared on November 1, 2001. These statements, then, were created after the entry of final judgment on September 27, 2001. More importantly, GUS has not shown either that the evidence is material or that it would have produced a different result in the original case. Indeed, the precise opposite is apparent. As noted above, GUS’s infringement claims were dismissed because GUS failed to provide evidence of substantial similarity. Parkin’s and Davis’s bare statements do nothing to unsettle this holding. 3 Finding no abuse of discretion, we affirm the district court’s rejection of GUS’s motion for relief from judgment. B For similar reasons, we also reject GUS’s argument that the district court erred in invoking collateral estoppel to dismiss the Boaz suit. GUS argues, again, that the prior HAL judgment was procured by fraud and perjury which prevented GUS from fully and fairly presenting its case against HAL. GUS further argues that Parkin’s and Davis’s admissions constitute new evidence that distinguishes the factual basis of the HAL and BOAZ suits, making collateral estoppel inappropriate. However, GUS failed to present any of these arguments to" }, { "docid": "4494630", "title": "", "text": "2003, he had asked defendants for information regarding “any complaint ... initiated against [them] concerning similar occurrences involving similar products or comparable products which allegedly caused a fire.” In support of the motion Miller had also submitted Kevin O’Neill’s affidavit, and he argues that the district court abused its discretion by considering Dau-bert on its admissibility. Appellees respond that the information Miller discovered after judgment had been public, that the multidistrict litigation involved cases that had been consolidated under Judge Eisele in the same judicial district in which Miller’s case was proceeding, and that the multidistrict cases had distinguishable facts, pointing out in particular that the fires in those cotton pickers had originated in the transmissions rather than in the headers. We review the denial of motions under Rule 59(e) or 60(b) for an abuse of discretion. See Schinzing v. Mid-States Stainless, Inc., 415 F.3d 807, 813 (8th Cir. 2005); Sellers v. Mineta, 350 F.3d 706, 715 (8th Cir.2003); U.S. Xpress Enter., Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 816 (8th Cir.2003). In order to prevail on his motion, Miller must show that he had been unable to uncover the newly discovered evidence prior to the court’s summary judgment ruling. Rule 59(e) motions are not available to “introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to judgment.” Innovative Home Health Care, Inc. v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.1998) (internal citations omitted). Similarly, a Rule 60(b)(2) motion based on the discovery of new evidence must show (1) that the evidence was discovered after the court’s order, (2) that the movant exercised diligence to obtain the evidence before entry of the order, (3) that the evidence is not merely cumulative or impeaching, (4) that the evidence is material, and (5) that the evidence would probably have produced a different result. E.E.O.C. v. The Rath Packing Co., 787 F.2d 318, 331 (8th Cir. 1986). Under Rule 60(b)(3), Miller must also show that appellees engaged in some type of fraud, misrepresentation, or misconduct that prevented" }, { "docid": "15580460", "title": "", "text": "court was correct in concluding that plaintiff’s evidence failed to meet this standard. After the district court had entered summary judgment against plaintiff on her breach of contract and tort claims, plaintiff attempted to introduce what she characterized as “new” evidence by way of a motion under Fed.R.Civ.P. 59(e). The district court noted that no Tenth Circuit law defined the standards for determining whether to reopen a case based on a Rule 59(e) motion advancing new evidence. After surveying other circuit law, the district court adopted the formula set out by the Fifth Circuit in Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167 (5th Cir.1990), which counsels a district court to consider, among other things, the reasons for the moving party’s default, the importance of the omitted evidence to the moving party’s case, whether the evidence was available to the non-movant before she responded to the summary judgment motion, and the likelihood that the nonmoving party will suffer unfair prejudice if the case is reopened. Id. at 174. Since the district court’s decision, however, this circuit has held in Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992), that [wjhen supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence. Id. (quoting Chery v. Bowman, 901 F.2d 1053, 1057-58 n. 6 (11th Cir.1990)). A district court’s ruling on a Rule 59(e) motion is reviewed for abuse of discretion. Id. Regardless of which standard is used in considering her Rule 59(e) motion, plaintiff has not shown that her late-offered evidence should have been considered by the district court. Plaintiff’s evidence consisted of an expert’s opinion of loss/ratio data obtained from defendant. This evidence not only fails to meet either of the standards discussed above, it is irrelevant to the question of wrongful termination. As explained above, as long as defendant did not terminate because of the deteriora tion in" }, { "docid": "15586913", "title": "", "text": "as a motion to alter or amend the judgment under Fed. R.Civ.P. 59(e). Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992). “[W]e evaluate the district court’s ruling on the Rule 59(e) motion for an abuse of discretion.” Id. “The purpose for such a motion ‘is to correct manifest errors of law or to present newly discovered evidence.’ ” Id. (quoting Harsco Corp. v. Zlotnicki 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986)). In order to supplement a Rule 59(e) motion with additional evidence such as an affidavit by an expert, the movant must show either (1) that the evidence is newly discovered, or (2) if the evidence was available at the time summary judgment was granted, that counsel made a diligent yet unsuccessful attempt to discover the evidence. Id. (citing Chery v. Bowman, 901 F.2d 1053, 1057-58 n. 6 (11th Cir.1990)). Here, Plaintiffs satisfy neither requirement. Instead, Plaintiffs maintain that they did not know the importance of expert evidence until they retained new counsel, after the district court had already granted summary judgment against them. This justification does not support Plaintiffs’ Motions to Reconsider. Consequently, the district court did not abuse its discretion in denying Plaintiffs’ Motions to Reconsider and in refusing to allow further discovery. AFFIRMED. . The district court dismissed Plaintiffs’ § 1983 claim against Defendant Howard R. Mefford, Special Administrator of the Estate of Glen Gibbs with prejudice in its order granting Defendants’ motion for summary judgment because Plaintiffs made no allegations that the decedent Gibbs was acting under color of state law at the time of his death. On appeal, Plaintiffs have abandoned their claim against Mefford. Appellants’ Opening Brief at 5 n. 1. . Because we determine that Defendant Griffin did not act with reckless indifference to the risk created, we need not consider whether he directed his actions toward Plaintiffs. However, we note that under our precedent reckless conduct ,is directed toward a plaintiff if: “(1) the plaintiff is a member of a limited and specifically definable group, (2)" }, { "docid": "10949783", "title": "", "text": "summary judgment. Yet, evidence is “unavailable,” so as to justify its late submission by way of a motion under Rule 59(e), only if it could not, in the exercise of reasonable diligence, have been submitted before. Keweenaw Bay, supra. See also Buell v. Security General Life Ins. Co., 987 F.2d 1467, 1472 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 308, 126 L.Ed.2d 255 (1993) (“When supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence”); RGI, Inc. v. Unified Industries, Inc., 963 F.2d 658, 662 (4th Cir.1992) (supplemental affidavit may be considered in support of Rule 59(e) motion only for justified reason); Russ v. International Paper Co., 943 F.2d 589, 593 (5th Cir.1991) (consideration of supplemental evidence must be justified by showing of earlier unavailability); Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 174-75 (5th Cir.1990), cert. denied, — U.S. -, 114 S.Ct. 171, 126 L.Ed.2d 131 (1993) (party’s “excusable neglect” insufficient to justify consideration of new evidence as earlier unavailable); Pacific Group v. First State Ins. Co., supra, 841 F.Supp. at 933 (if evidence was, through exercise of reasonable diligence, previously available, Rule 59(e) motion fails as a matter of law). In exercising its discretion to determine whether the belatedly filed Dr. Flynn materials should be considered, the Court must strike a proper balance between the need to uphold the integrity of pretrial schedules and procedures, the need to uphold the finality of decisions made, and the need to render just decisions on the basis of all the pertinent facts. Lavespere, supra, 910 F.2d at 174. The discovery deadline in this case was extended from February 15 to March 10, 1995, by order of United States Magistrate Joseph G. Scoville dated January 27, 1995. Yet, plaintiff admits that her attorney did not supply Dr. Flynn with the materials he was to examine in preparation to render his opinions until" }, { "docid": "15586912", "title": "", "text": "Elwood, Kansas, 997 F.2d 774, 782 (10th Cir.1993). II. Plaintiffs also maintain the district court erred in denying their Motions to Reconsider. After the district court granted summary judgment, Plaintiffs obtained new counsel and sought to reopen discovery by filing Motions to Reconsider pursuant to Fed. R.Civ.P. 59(e). Plaintiffs wanted to obtain and submit the deposition of Samuel G. Chapman, a criminal policy and procedure expert. As an offer of proof, Plaintiffs submitted the expert’s affidavit which concluded that Defendant Griffin’s failure to take other precautionary measures before awakening Gibbs amounted to reckless disregard of a known risk. The district court denied Plaintiffs’ Motions to Reconsider, and concluded that a reasonable jury could not find that Officer Griffin’s actions, in awakening Gibbs, involved the reckless intent necessary to sustain a claim for a constitutional violation under § 1983. On appeal, Plaintiffs argue that the district court abused its discretion in refusing to reopen discovery to consider the affidavit of their expert. A postjudgment motion to reconsider summary judgment based on subsequently produced evidence is treated as a motion to alter or amend the judgment under Fed. R.Civ.P. 59(e). Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992). “[W]e evaluate the district court’s ruling on the Rule 59(e) motion for an abuse of discretion.” Id. “The purpose for such a motion ‘is to correct manifest errors of law or to present newly discovered evidence.’ ” Id. (quoting Harsco Corp. v. Zlotnicki 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986)). In order to supplement a Rule 59(e) motion with additional evidence such as an affidavit by an expert, the movant must show either (1) that the evidence is newly discovered, or (2) if the evidence was available at the time summary judgment was granted, that counsel made a diligent yet unsuccessful attempt to discover the evidence. Id. (citing Chery v. Bowman, 901 F.2d 1053, 1057-58 n. 6 (11th Cir.1990)). Here, Plaintiffs satisfy neither requirement. Instead, Plaintiffs maintain that they did not know the importance of expert evidence until" }, { "docid": "10680361", "title": "", "text": "may be granted upon a showing of “newly discovered or previously unavailable evidence.” Id. “To constitute ‘newly discovered evidence,’ the evidence must have been previously unavailable.” GenCorp, Inc. v. Amer. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.1999). This requires a showing that the evidence could not have been discovered previously with due diligence. See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2808 (3d ed.1998) (“The moving party must have been excusably ignorant of the facts despite using due diligence to learn about them.”); see also Bogart v. Chapell, 396 F.3d 548, 558 (4th Cir.2005) (upholding the denial of a Rule 59(e) motion where “the movant presented no legitimate justification for failing to timely submit the evi dence and had advance notice of the ... issues.”); Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688, 696-97 (5th Cir.2003) (“[A] 59(e) motion to reconsider should not be granted unless ... the facts alleged ... could not have been discovered earlier by proper diligence.”); Committee for First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992) (“[T]he movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.”); Chery v. Bowman, 901 F.2d 1053, 1057 n. 6 (11th Cir.1990) (same). The District Court denied the State’s Rule 59(e) motion based on a finding that the affidavits did not qualify as “newly discovered evidence.” It explained: [The State] clearly cannot establish that [it] exercised due diligence in procuring this evidence.... As is apparent by the addresses listed on their affidavits, [the three affiants] still reside in the Toledo, Ohio area. [The State] has not shown any reason why these witnesses could not have been contacted prior to the court’s issuance of the March 31, 2007 Memorandum of Opinion [granting Montgomery’s petition for a writ of habeas corpus], We review the District Court’s denial of the Rule 59(e) motion for abuse of discretion, Betts v. Costco Wholesale Corp., 558 F.3d 461, 467 (6th" }, { "docid": "22878879", "title": "", "text": "were unable to persuade the district court to defer its summary judgment ruling pending discovery. A related issue is whether the district court should have considered summary judgment materials subsequently produced by the Plaintiffs in their postjudgment motion to reconsider. The district court declined to undertake such reconsideration. We treat Plaintiffs motion to reconsider as a motion to alter or amend the judgment because the motion was filed within ten days after the district court’s order granting summary judgment and dismissing the case was entered on the docket. See Foman v. Davis, 371 U.S. 178, 180-81, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991). The purpose for such a motion “is to correct manifest errors of law or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). In these circumstances, we evaluate the district court’s ruling on the Rule 59(e) motion for an abuse of discretion. Pasternak, 790 F.2d at 833. When supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence. Chery v. Bowman, 901 F.2d 1053, 1057-58 n. 6 (11th Cir.1990). See also Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th Cir.1991). The district court evaluated the motion for reconsideration under a similar standard applied to a new trial motion based on newly discovered evidence. As we understand the district court’s order, the proffered evidence did not warrant reconsideration because it had not been discovered subsequent to the order granting summary judgment, the Plaintiffs had not demonstrated reasonable diligence and the evidence would not produce a different result. We recognize that the district court considered Plaintiffs’ response in opposition to summary judgment without the later evidentiary attachments concerning alleged historical censorship. The two affidavits originally submitted in the response concern only the" }, { "docid": "15580461", "title": "", "text": "decision, however, this circuit has held in Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992), that [wjhen supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence. Id. (quoting Chery v. Bowman, 901 F.2d 1053, 1057-58 n. 6 (11th Cir.1990)). A district court’s ruling on a Rule 59(e) motion is reviewed for abuse of discretion. Id. Regardless of which standard is used in considering her Rule 59(e) motion, plaintiff has not shown that her late-offered evidence should have been considered by the district court. Plaintiff’s evidence consisted of an expert’s opinion of loss/ratio data obtained from defendant. This evidence not only fails to meet either of the standards discussed above, it is irrelevant to the question of wrongful termination. As explained above, as long as defendant did not terminate because of the deteriora tion in plaintiffs health, it had the right to terminate at will. Evidence of loss/ratio data to show that defendant’s termination was for financial reasons, whether considered adequate by plaintiff's experts or not, was irrelevant. The district court did not abuse its discretion in refusing to consider it. The judgment of the United States District Court for the District of Colorado is AFFIRMED with respect to the grant of summary judgment on plaintiffs damage claims and the denial of her Rule 59(e) motion. With respect to the issue of coverage, the judgment of the United States District Court for the District of Colorado is REVERSED and REMANDED for entry of a declaratory judgment in favor of defendant. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. . That statute, in force at the time the policy was delivered, provided: If the group insurance policy provides" }, { "docid": "17081412", "title": "", "text": "that the evidence was not newly discovered. The district court also concluded that Mr. Ediger’s testimony would not have changed its decision in favor of EWS. 2. Rule 59(e) Legal Background “The purpose [of a Rule 59(e) ] motion is to correct manifest errors of law or to present newly discovered evidence.” Webber v. Mefford, 43 F.3d 1340, 1345 (10th Cir.1994) (citation omitted) (quotations omitted). “Grounds for granting a Rule 59(e) motion include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144, 1153 (10th Cir.2012) (quotations omitted). To support a Rule 59(e) motion with additional evidence, such as the deposition testimony of EWS’s safety director, the moving party must show “(1) that the evidence is newly discovered, or (2) if the evidence was available at the time summary judgment was granted, that counsel made a diligent yet unsuccessful attempt to discover the evidence.” Webber, 43 F.3d at 1345. 3.The District Court’s Order The district court found that Mr. Ediger’s testimony was available to Mr. Monge before the court entered its summary judgment order. At the time Mr. Monge responded to the summary judgment motion, he knew that he wanted to depose Mr. Ediger, but he neither requested additional time for discovery nor filed a Rule 56(d) motion indicating that additional time was needed to respond to EWS’s summary judgment motion. The court also found that Mr. Monge failed to establish that he made diligent efforts to discover the evidence. Mr. Monge knew Mr. Ediger’s name and position with EWS well before his counsel began attempting to schedule a deposition in 2011. Moreover, the district court noted that Mr. Monge did not seek leave to supplement his response to the summary judgment motion once the deposition was taken, although the court had not yet issued its order. 4. Mr. Monge’'s Arguments Mr. Monge argues that Mr. Ediger’s testimony was newly discovered evidence. Under Rule 30(e) of the Federal Rules of Civil Procedure, a “deponent must be" }, { "docid": "10680362", "title": "", "text": "F.2d 1517, 1523 (10th Cir.1992) (“[T]he movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.”); Chery v. Bowman, 901 F.2d 1053, 1057 n. 6 (11th Cir.1990) (same). The District Court denied the State’s Rule 59(e) motion based on a finding that the affidavits did not qualify as “newly discovered evidence.” It explained: [The State] clearly cannot establish that [it] exercised due diligence in procuring this evidence.... As is apparent by the addresses listed on their affidavits, [the three affiants] still reside in the Toledo, Ohio area. [The State] has not shown any reason why these witnesses could not have been contacted prior to the court’s issuance of the March 31, 2007 Memorandum of Opinion [granting Montgomery’s petition for a writ of habeas corpus], We review the District Court’s denial of the Rule 59(e) motion for abuse of discretion, Betts v. Costco Wholesale Corp., 558 F.3d 461, 467 (6th Cir.2009), and find no such error in this case. The District Court correctly noted that each of the affiants still lived in the Toledo, Ohio, area. What is more, the police report itself listed the name, address, and telephone number of David Ingram, the principal affiant who called in the report in 1986. Although this contact information may be outdated, it could have been used to locate Ingram and, through him, the two others who now claim that their 1986 sighting was in error. This fact, coupled with the State’s complete inaction (despite notice of Montgomery’s Brady challenge), is fatal. Without having made any effort to determine the veracity (or not) of the police report, the State cannot now argue that the information in the affidavits could not have been discovered with due diligence before the writ was issued. Where previously withheld evidence surfaces after the criminal trial has ended, it is the habeas court’s duty to examine the evidence carefully to determine whether it is “material” under Brady. To the extent that the State" }, { "docid": "17443090", "title": "", "text": "2010, the district court denied as moot substantially all of the motion to compel. Nearly seven weeks later, on April 16, 2010, the district court granted CND’s motion to dismiss. Grounds for granting a Rule 59(e) motion include “(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). Where a party seeks Rule 59(e) relief to submit additional evidence, “the movant must show either that the evidence is newly discovered [or] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.” Comm. for First Amendment, 962 F.2d at 1523. The district court concluded Somerlott failed to act diligently in pursuing her outstanding discovery requests and therefore concluded she failed to make the necessary showing for Rule 59(e) relief. This determination did not “exceed the bounds of permissible choice” under the circumstances. See Wright, 259 F.3d at 1235. As of February 26, 2010, CND’s counsel informed Somerlott’s counsel it would not be providing any additional discovery without a protective order, that it considered Somerlott’s counsel to be in breach of the parties’ agreement, and that additional discovery issues needed to be “set ... before the court for resolution.” Somerlott was at that point on notice the defendants did not intend to disclose any additional material absent a court order. Nonetheless, she took no action for over seven weeks. The district court’s conclusion that this delay, considered in context of Somerlott’s numerous prior requests for extensions of time, amounted to a lack of diligence, was not “arbitrary, capricious, whimsical, or manifestly unreasonable,” and therefore will not be disturbed on appeal. See id. at 1236. IV. CONCLUSION For the foregoing reasons, the court AFFIRMS the decision of the district court. . Somerlott initially named CNDI in her complaint, but later amended her complaint to include CND. The distinction between these entities is not material to the court's resolution of this appeal. ." }, { "docid": "17443089", "title": "", "text": "7, 2010, CND’s motion to dismiss was fully briefed, including supplemental declarations and notices of authority filed by both parties. The motions to compel were set for a February 4, 2010, hearing. At the hearing, the parties informed the court they had resolved almost all discovery issues by agreement with the exception of one Interrogatory and a related Request for Production concerning CND’s financial records. The parties now dispute their respective obligations under this agreement. While they agree CND’s obligation to provide additional discovery was conditioned on the court’s entry of a protective order, Somerlott argues she was under no obligation to cooperate with CND in submitting a joint motion for such an order. The parties initially did cooperate and submitted a joint motion for an agreed-upon protective order on February 12, 2010. The district court, however, denied the motion without prejudice because of several deficiencies, most generally because the proposed order was overbroad in scope. No revised order was submitted. Pursuant to the parties’ agreement announced at the February 4 hearing, on February 23, 2010, the district court denied as moot substantially all of the motion to compel. Nearly seven weeks later, on April 16, 2010, the district court granted CND’s motion to dismiss. Grounds for granting a Rule 59(e) motion include “(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). Where a party seeks Rule 59(e) relief to submit additional evidence, “the movant must show either that the evidence is newly discovered [or] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.” Comm. for First Amendment, 962 F.2d at 1523. The district court concluded Somerlott failed to act diligently in pursuing her outstanding discovery requests and therefore concluded she failed to make the necessary showing for Rule 59(e) relief. This determination did not “exceed the bounds of permissible choice” under the circumstances. See Wright, 259" }, { "docid": "22878880", "title": "", "text": "Pasternak, 790 F.2d at 833. When supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence. Chery v. Bowman, 901 F.2d 1053, 1057-58 n. 6 (11th Cir.1990). See also Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th Cir.1991). The district court evaluated the motion for reconsideration under a similar standard applied to a new trial motion based on newly discovered evidence. As we understand the district court’s order, the proffered evidence did not warrant reconsideration because it had not been discovered subsequent to the order granting summary judgment, the Plaintiffs had not demonstrated reasonable diligence and the evidence would not produce a different result. We recognize that the district court considered Plaintiffs’ response in opposition to summary judgment without the later evidentiary attachments concerning alleged historical censorship. The two affidavits originally submitted in the response concern only the present film. Absent in this record, however, is an explanation of why Plaintiffs waited three months to submit additional evidence, and then as part of a Rule 59(e) motion. When one considers that Plaintiffs submitted largely historical evidence and that the affidavits submitted were not dated until March 25, 1990, it is evident that the Plaintiffs have not met their burden of showing diligence. They have not demonstrated that the evidence was newly discovered or unavailable in a more timely fashion through the exercise of diligence. Plainly, the district court did not abuse its discretion in denying Plaintiff's motion for reconsideration. II. Are Plaintiffs’ equitable claims moot? We next consider whether the district court abused its discretion insofar as it determined that plaintiffs’ request for injunctive relief was moot, especially in light of the 1991 policy. The mootness inquiry goes “to the exercise rather than the existence of judicial power.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982). A claim is moot when no" }, { "docid": "22101038", "title": "", "text": "opinions and suspicions about the extent to which MSD contributed to the contamination at the GLCC Site. Because Mallickrodt fails to provide “new evidence” as required under FRCP 60(b)(2), this Court finds that Mallinckrodt’s motion should be denied. This court has consistently held that Rule 59(e) motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to the entry of judgment. See Innovative Home Health Care, 141 F.3d at 1286 (8th Cir.1998); Garner v. Arvin Indus. Inc./Arvin North Am. Automotive, 77 F.3d 255, 258-59 (8th Cir.1996). In this case, Mallinckrodt has not advanced a persuasive explanation for its failure to obtain or produce this “new” evidence before the Consent Decree hearing. All information used in formulating the Grip report was available to Mallinck-rodt well before the Consent Decree hearing. In fact, the aerial photographs analyzed by Mr. Grip were obtained through a commercial vendor, and the documents from the EPA, used by Mallinckrodt, were given to Mallinckrodt 17 months before the Consent Decree hearing. Because this evidence was available to Mallinckrodt, it should have been presented prior to the entry of judgment. The Grip report is merely a newly created opinion based on facts known to or . accessible by Mallinckrodt at the time of the Consent Decree hearing and cannot warrant relief under Rule 59(e). Mallinckrodt controlled the timing of the production and proffer of its own expert’s opinion. Thus, the district court did not abuse its discretion in refusing to consider Mallinckrodt’s new evidence. See Crowell v. Campbell Soup Co., 264 F.3d 756, 764 (8th Cir.2001) (holding that the allegedly new evidence appeared to come from public records and not from any misrepresentation of the ap-pellee, therefore, the district court did not abuse it discretion in denying the appellant’s motion for reconsideration under Rule 59(e)); Liberty Mutual Ins. Co. v. FAG Bearings Corp., 153 F.3d 919, 924 (8th Cir.1998) (holding that the appellant failed to show that it exercised due diligence to discover the new evidence and failed to show why such evidence could not" }, { "docid": "10949782", "title": "", "text": "error of law or prevent manifest injustice. Keweenaw Bay Indian Community v. State of Michigan, 152 F.R.D. 562, 563 (W.D.Mich.1992). See also Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90-91, n. 3 (1st Cir.1993); Torre v. Federated Mutual Ins. Co., 862 F.Supp. 299, 300-01 (D.Kan.1994); Pacific Group v. First State Ins. Co., 841 F.Supp. 922, 931 (N.D.Cal.1993). I The new evidence plaintiff asks the Court to consider consists of the opinions of her expert John P. Flynn, Ph.D., M.S.W., reflected in a 66-page written report dated May 8,1995, and the transcript of his deposition taken on May 25, 1995. Dr. Flynn’s opinions were formulated after examination of University records. According to plaintiffs characterization, he opines that “the decision to deny Dr. Javetz was based upon criteria outside of University policies, and that the tenure policies were not fairly applied to Dr. Javetz.” Neither the May 8, 1995 report nor the 300-page deposition transcript prepared on June 6, 1995, was available on May 4, 1995, when this Court heard oral argument on defendants’ motion for summary judgment. Yet, evidence is “unavailable,” so as to justify its late submission by way of a motion under Rule 59(e), only if it could not, in the exercise of reasonable diligence, have been submitted before. Keweenaw Bay, supra. See also Buell v. Security General Life Ins. Co., 987 F.2d 1467, 1472 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 308, 126 L.Ed.2d 255 (1993) (“When supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence”); RGI, Inc. v. Unified Industries, Inc., 963 F.2d 658, 662 (4th Cir.1992) (supplemental affidavit may be considered in support of Rule 59(e) motion only for justified reason); Russ v. International Paper Co., 943 F.2d 589, 593 (5th Cir.1991) (consideration of supplemental evidence must be justified by showing of earlier unavailability); Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 174-75 (5th" }, { "docid": "23347797", "title": "", "text": "we cannot disturb either the district court’s assessment of these criteria or its decision to deny relief. Although Karak touts the Yaeger affidavit as newly discovered evidence, he wholly fails to explain why this evidence could not have been found, well before the entry of judgment, in the exercise of even minimal diligence. The inference of availability seems compelling. Yaeger — although retired from his position at Bursaw — lived in nearby Lynn, Massachusetts. Karak had dealt with him for many years and knew him intimately. On the face of things, the delay in contacting Yaeger appears to doom Karak’s current quest. See, e.g., Washington v. Patlis, 916 F.2d 1036, 1038 (5th Cir.1990) (affirming trial court’s denial of Rule 60(b)(2) motion when movant knew of her “newly discovered” witness at the time she filed her complaint, but did not attempt to present that witness until after entry of judgment). Of course, appearances can be deceiving. Cf. Aesop, The Wolf in Sheep’s Clothing (circa 550 B.C.). But a party who seeks relief from a judgment based on newly discovered evidence must, at the very least, offer a convincing explanation as to why he could not have proffered the crucial evidence at an earlier stage of the proceedings. See Lepore, 792 F.2d at 274. Karak did not carry this burden: he himself eschewed any attempt to explain the delay in adducing Yaeger’s version of the facts, and the Yaeger affidavit provided nothing suggesting that Yaeger was unavailable during the weeks leading up to the entry of judgment. Indeed, the only effort that Karak made to persuade the district court that Yaeger’s evidence was beyond his reach was to file an affidavit from his then-counsel (Blaustein). The Blaustein affidavit is scarcely worth the paper on which it is typed. Other than parroting the language of Rule 60(b)(2), Blaustein stated only that he did not know about Yaeger until June 23, 2001. That statement, even if true, is beside the point. The relevant standard is not whether a plaintiff told his attorney about a particular witness, but, rather, whether someone on the plaintiffs side" }, { "docid": "7381802", "title": "", "text": "emphasized this fact to Mr. Jay {Id.). Ms. Adams states that she did turn over to Mr. Jay the medical record compiled by Leeland Jones, M.D. Dr. Jones is a psychiatrist who was brought in for an in-hospital consultation in March 1995 by Dr. Nielsen, and who continued to treat Ms. Hollis for sex abuse therapy for fifteen months {Id.). The information plaintiff seeks to use to amend the court’s findings was available to plaintiff prior to trial. It pertains to plaintiffs own medical treatment. Because this is not newly discovered evidence, additional evidence will not be taken by court. Accordingly, plaintiffs Rule 52(b) motion is denied. B. Rule 59(e). Like Rule 52(b), Rule 59(e) permits the court to revisit a prior decision when there has been an intervening change in the law, new evidence becomes available, or there is a need to correct a clear error or prevent manifest injustice. Fed.R.Civ.P 59(e); Cavallo v. Utica-Watertown Health Ins. Co., 3 F.Supp.2d 223, 225 (N.D.N.Y. 1998); Patterson-Stevens, Inc. v. International Union of Operating Eng’rs, 164 F.R.D. 4, 6 (W.D.N.Y.1995); Bartz v. Agway, Inc., 849 F.Supp. 166, 167 (N.D.N.Y.1994); Atlantic States Legal Found., 841 F.Supp. at 53. A Rule 59(e) motion can only be granted if the movant presents newly discovered evidence that was not available at the time of the trial, or there is evidence in the record that establishes a manifest error of law or fact. E.g., Cavallo, 3 F.Supp.2d at 225. The evidence must be “newly discovered or ... could not have been found by due diligence.” United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir.1983) (citation omitted); Atlantic States Legal Found., 841 F.Supp. at 56. Here, the record clearly indicates that plaintiff seeks to introduce evidence that could have been discovered through due diligence. Plaintiff was receiving medical treatment for the effects of sexual harassment since 1992. In addition, plaintiff testified about tests undertaken to see if she was suffering any heart problems (Tr. at 36-38). Ms. Adams also affirmed that she provided Mr. Jay with the medical record compiled by Dr. Jones (Item 40," } ]

[ { "docid": "14047488", "title": "", "text": "Torts § 908(1)). Punitive damages are not meant to compensate the victim, but instead meant to award the victim an amount of money that will punish outrageous behavior and deter such outrageous conduct in the future. In determining the proper punitive damages award, courts evaluate four factors: “(1) the character of the defendants’ act, (2)’ the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Acosta, 574 F.Supp.2d at 30 (citing Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 32 (D.D.C.1998) (citing Restatement (Second) of Torts § 908)). The nature of the defendants’ acts and the nature and extent of the harm defendants intentionally caused are among the most heinous the Court can fathom. See Bodoff, 424 F.Supp.2d at 88 (determining a bus bombing, for which Iran was held liable, to be “extremely heinous”). “The defendants’ demonstrated policy of encouraging, supporting and directing a campaign of deadly terrorism is evidence of the monstrous character of the bombing that inflicted maximum pain and suffering on innocent people.” Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 278 (D.D.C.2003) (concerning a separate bus bombing for- which Iran and MOIS were held liable). The evidence shows that defendants completely lacked any semblance of remorse for this deadly attack — and in fact, encouraged and supported this and similar attacks. As to deterrence and wealth, Iran and Syria are foreign states with substantial wealth and that have expended significant resources sponsoring terrorism. Dr. Patrick Clawson, an expert on Iranian terrorism activities, has testified in several cases on the amounts of punitive damages that would serve to deter Iran from supporting terrorist activities against nationals of the United States. See, e.g., Flatow, 999 F.Supp. at 32; Heiser II, 659 F.Supp.2d at 30. Dr. Clawson declared that “the financial material support provided by Iran in support of terrorism is in the range of $300 million to $500 million a year.” Clawson Aff. ¶ 4, Valore, 700 F.Supp.2d 52 (03-cv-1959, ECF No. 58). Dr. Clawson based his" } ]

[ { "docid": "17955027", "title": "", "text": "of the appropriate amount of punitive damages in state-sponsored terrorism cases. One approach is to multiply the foreign state’s “annual expenditures on terrorism” by a factor between three and five. See Baker, 775 F.Supp.2d at 85 (citing to Valore, 700 F.Supp.2d at 88-90; Estate of Reiser, 659 F.Supp.2d at 30-31; Acosta, 574 F.Supp.2d at 31); Beer v. Islamic Republic of Iran, 789 F.Supp.2d 14, 26 (D.D.C.2011). Alternatively, punitive damages have been awarded based on “the ratio of punitive to compensatory damages set forth in earlier cases,” if similar conduct has been previously litigated. See Spencer v. Islamic Republic of Iran, 71 F.Supp.3d 23, 31 (D.D.C.2014); Goldberg-Botvin v. Islamic Republic of Iran, 938 F.Supp.2d 1, 11-12 (D.D.C.2013). A third approach awards a fixed amount of $150,000,000 per victim. See Wyatt, 908 F.Supp,2d at 233 (awarding $300 million in total two the estates of two victims and their families); Bodojf, at 106, (awarding $300 million in total to a single victim and his family); Baker, 775 F.Supp.2d at 86 (awarding $150 million to each family of three deceased victims); Gates, 580 F.Supp.2d at 75 (awarding $150 million each to the estates of two victims). The defendants here are estimated to spend between $500 million to $700 million annually to support terrorism. See Baker, 775 F.Supp.2d at 85. Multiplying the average of $600 million by even the lower multiplier of three would result in an award of $1.8 billion. This amount would exceed the punitive damages awarded in other cases against the Syrian government by $1.5 billion and is even more than the plaintiffs demand. See Compl. ¶ 98 (“Plaintiffs ... .demand that judgment be entered, jointly and severally, against defendants in the amount of THREE HUNDRED SIXTY MILLION US DOLLARS ($360,000,-000.00).”). The defendants’ conduct in providing material support to the terrorist group that perpetrated the attacks here is indeed outrageous, and the results are indisputably tragic. The conduct here, however, is not more outrageous and the results are not more tragic than the events at issue in other cases. In Gates, for example, two American civilians working in Iraq were brutally decapitated" }, { "docid": "3004336", "title": "", "text": "judgment in the district court. Gates v. Syrian Arab Republic, 646 F.Supp.2d 79, 81-82 (D.D.C. 2009) (“Gates II”). Recent cases have taken different approaches in determining the appropriate amount of punitive damages in terrorism cases. In Valore, Heiser, and Acosta, the Court held that an appropriate measure of punitive damages was the state’s annual expenditures on terrorism multiplied by a number from three to five. Valore, 700 F.Supp.2d at 88-90; Heiser, 659 F.Supp.2d at 30-31; Acosta, 574 F.Supp.2d at 31. In Gates I, on the other hand, the Court awarded each of the families $150 million in punitive damages, for a total of $300 million. Gates I, 580 F.Supp.2d at 75. Examining these cases helps determine which method is most appropriate. In Valore, where the Court multiplied the amount expended each year by five, the Court pointed out that Iran had begun to participate more actively in litigation in the United States. Valore, 700 F.Supp.2d at 89. The Court hypothesized that, in light of Iran’s “paying more attention to the cases that have been brought against it,” it might be more likely that the punitive damages would have the desired effect of “sendfing] the strongest possible message” to Iran that its support of terrorism would not be tolerated. Id. Furthermore, the terrorist act underlying the case was the 1983 bombing of a Marine barracks in Beirut, which was the most deadly state-sponsored terrorist attack on Americans until September 11, 2001, killing 241 American military servicemen. Id. at 57. The punitive award in that case was $1 billion. In Heiser, the estimated terrorism expenditures by Iran were between $50 million and $150 million per year; based on that range, the Court took the mean, $100 million, and multiplied it by three, noting that this Court had, with one exception, never awarded an amount higher than $300 million in punitive damages against Iran. Heiser, 659 F.Supp.2d at 30-31. In Acosta, the Court had the same numbers, and came to the same conclusion, awarding $300 million dollars in punitive damages against Iran. Acosta, 574 F.Supp.2d at 31. As the Court in Gates I" }, { "docid": "4899985", "title": "", "text": "and Murray Braun; Sara and Shimshon Halperin Esther and Murray Braun and Sara and Shimshon Halperin have each suffered greatly from seeing the effects of the Attack and the resulting death of their granddaughter on them respective children. See Strous Expert Decl. Re: Esther Braun ¶¶ 16-17 (explaining that Esther Braun displays symptoms of persistent psychological disorders related to grief and “that many of her symptoms ... are likely to be present in varying degrees for a significant time to come aiid ... may even be permanent”); Strous Expert Decl. Re: Murray Braun ¶¶ 16-17 (same); Strous Expert Decl. Re: Sara Halperin ¶¶ 15-16 (same); Strous Expert Decl. Re: Sara Halperin ¶¶ 15-16 (same). Yet, Chana and Shmuel, fortunately, remain alive. Accordingly, each of these four plaintiffs is entitled to an award of $2,500,000. See, e.g., Wultz, 864 F.Supp.2d at 41. 5. Punitive Damages The plaintiffs also seek punitive damages, which are awarded not to compensate the victims, but to “punish outrageous behavior and deter such outrageous conduct in the future.” Kim, 87 F.Supp.3d at 290 (quoting Bodoff v. Islamic Republic of Iran, 907 F.Supp.2d 93, 105 (D.D.C. 2012) (internal quotation marks omitted)); see also Restatement (Second) of Torts § 908(1) (1977). Punitive damages are warranted where “defendants supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others.” Baker, 775 F.Supp.2d at 85. The defendants’ conduct in supporting Hamas justifies the imposition of punitive damages here. In determining the appropriate amount of punitive damages, courts consider “(1) the character of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Wultz, 864 F.Supp.2d at 41 (quoting Acosta, 574 F.Supp.2d at 30). Taking into account these factors, several approaches have been articulated for calculation of the appropriate amount of punitive damages in state-sponsored terrorism cases involving Iran, Syria, and other similar defendants. One approach is to multiply the foreign" }, { "docid": "17955026", "title": "", "text": "plaintiffs also seek punitive damages, which are allowable under Section 1605A(c). Punitive damages are awarded not to compensate the victims, but to ‘“punish outrageous behavior and deter such outrageous conduct in the future.’ ” Kim, 87 F.Supp.3d at 290 (quoting Bodoff v. Islamic Republic of Iran, 907 F.Supp.2d 93, 105 (D.D.C.2012) (internal quotations omitted)); see also Restatement (Second) of ToRts § 908(1) (1977). Punitive damages are warranted where “defendants supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others.” Baker, 775 F.Supp.2d at 85 (D.D.C.2011). The defendants’ conduct in sheltering and sponsoring Zarqawi and AQI, known terrorists whose stated mission is to devastate those who support Americans, certainly justifies the imposition of punitive damages here. See also Gates, 580 F.Supp.2d at 74 (finding that “Syria supported, protected, harbored, and subsidized a terrorist group,” Zarqawi’s AQI, “whose modus operandi was the targeting, brutalization, and murder of American and Iraqi civilians”). Various approaches have been articulated for calculation of the appropriate amount of punitive damages in state-sponsored terrorism cases. One approach is to multiply the foreign state’s “annual expenditures on terrorism” by a factor between three and five. See Baker, 775 F.Supp.2d at 85 (citing to Valore, 700 F.Supp.2d at 88-90; Estate of Reiser, 659 F.Supp.2d at 30-31; Acosta, 574 F.Supp.2d at 31); Beer v. Islamic Republic of Iran, 789 F.Supp.2d 14, 26 (D.D.C.2011). Alternatively, punitive damages have been awarded based on “the ratio of punitive to compensatory damages set forth in earlier cases,” if similar conduct has been previously litigated. See Spencer v. Islamic Republic of Iran, 71 F.Supp.3d 23, 31 (D.D.C.2014); Goldberg-Botvin v. Islamic Republic of Iran, 938 F.Supp.2d 1, 11-12 (D.D.C.2013). A third approach awards a fixed amount of $150,000,000 per victim. See Wyatt, 908 F.Supp,2d at 233 (awarding $300 million in total two the estates of two victims and their families); Bodojf, at 106, (awarding $300 million in total to a single victim and his family); Baker, 775 F.Supp.2d at 86 (awarding $150 million to each family of three" }, { "docid": "19443274", "title": "", "text": "of Iran , 789 F.Supp.2d 14, 26 (D.D.C. 2011). This approach, which may result in awards in the billions of dollars, has been used in the case of exceptionally deadly attacks, such as the 1983 bombing of the Marine barracks in Beirut, which killed 241 American military servicemen. See Baker , 775 F.Supp.2d at 85. A second approach bases punitive damages on \"the ratio of punitive to compensatory damages set forth in earlier cases,\" if similar conduct has been previously litigated. See Spencer v. Islamic Republic of Iran , 71 F.Supp.3d 23, 31 (D.D.C. 2014) ; Goldberg-Botvin v. Islamic Republic of Iran , 938 F.Supp.2d 1, 11-12 (D.D.C. 2013). A third approach awards a fixed amount of $ 150,000,000 per affected family. See Wyatt v. Syrian Arab Republic , 908 F.Supp.2d 216, 233 (D.D.C. 2012) (awarding $ 300,000,000 in total to two victims and their families); Baker , 775 F.Supp.2d at 86 (awarding $ 150,000,000 each to families of three deceased victims); Gates , 580 F.Supp.2d at 75 (awarding $ 150,000,000 each to the estates of two victims). In this case, although egregious, Otto's detention in North Korea is not on the scale of an exceptionally deadly attack against many Americans, making the first method, which might result in an award in the billions of dollars, as the plaintiffs request, see Pls.' Mot. at 44, out-of-line with analogous circumstances. In addition, the first method requires knowing how much North Korea spends on terrorist activities, and that information is not available. See Kim , 87 F.Supp.3d at 291 (explaining that \"[n]o such information for North Korea is readily accessible, ... if it is accessible at all\"). The second method, likewise, is not appropriate since Otto's case is unique. The third approach, thus, is the most appropriate, but recognizing that North Korea has committed acts that are \"awful and worthy of the gravest condemnation,\" id. (quoting Roth , 78 F.Supp.3d at 405 ), and that North Korea is \"keenly aware\" of the \"political environment\" in the United States, including judgments issued by United States courts, H'rg Tr. (Rough) at 131-32 (Expert Prof." }, { "docid": "4899987", "title": "", "text": "state’s “annual expenditures on terrorism” by a factor between three and five. See Baker, 775 F.Supp.2d at 85 (citing Valore, 700 F.Supp.2d at 88-90; Estate of Heiser, 659 F.Supp.2d at 30-31; Acosta, 574 F.Supp.2d at 31); Beer v. Islamic Republic of Iran, 789 F.Supp.2d 14, 26 (D.D.C. 2011). This approach, which may result in awards in the billions of dollars, has been used in the case of exceptionally deadly attacks, such as the 1983 bombing of the Marine barracks in Beirut, which killed 241 American military servicemen. See Baker, 775 F.Supp.2d at 85. Another approach awards a fixed amount of $150,000,000 per affected family. See Wyatt, 908 F.Supp.2d at 233 (awarding $300,000,000 in total to two victims and their families); Baker, 775 F.Supp.2d at 86 (awarding $150,000,000 each to families of three deceased victims); Gates, 580 F.Supp.2d at 75 (awarding $150,000,000 each to the estates of two victims). The defendants’ conduct in providing material support to the terrorist group that perpetrated the attacks here is indeed outrageous, and the results are indisputably tragic. The conduct here, however, is more akin to the conduct in cases awarding $150,000,000 per family than the cases in which a multiple of a foreign state’s entire sponsorship of terrorism is used. In Gates, for example, where $150,000,000 in punitive damages per family was awarded, two American civilians working in Iraq were brutally decapitated and their deaths videotaped to be broadcast to the world, 580 F.Supp.2d at 55, and in Baker, terrorists, who hijacked a Cairo-bound plane, shot “execution-style” three Americans on board the flight, 775 F.Supp.2d at 55. Mindful of these precedents, this Court will award $150,000,000 in punitive damages against the defendants in this case. IV. CONCLUSION For the reasons outlined above, the plaintiffs’ motion for default judgment is granted. The defendants are jointly and severally liable for the death of Chaya Zissel Braun and the injuries to the family member plaintiffs. The plaintiffs are awarded monetary damages in the following amounts: the plaintiffs are entitled to $150,000,000 in punitive damages; Chaya Zissel Braun’s estate is entitled to $1,000,000 in survival damages; Chaya Zis-sel’s" }, { "docid": "19443273", "title": "", "text": "Hekmati , 278 F.Supp.3d at 166 (punitive damages awarded where plaintiff was held in solitary confinement, beaten, threatened, and psychologically battered for years in Iran). In determining the appropriate amount of punitive damages, courts consider \"(1) the character of the defendants' act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.\" Wultz v. Islamic Republic of Iran , 864 F.Supp.2d 24, 41 (D.D.C. 2012) (quoting Acosta , 574 F.Supp.2d at 30 ). Taking these factors into account, several approaches have been articulated for calculation of the appropriate amount of punitive damages in state-sponsored terrorism cases. One approach is to multiply the foreign state's \"annual expenditures on terrorism\" by a factor between three and five. See Baker , 775 F.Supp.2d at 85 (citing Valore , 700 F.Supp.2d at 88-90 ; Estate of Heiser v. Islamic Republic of Iran , 659 F.Supp.2d 20, 30-31 ; Acosta , 574 F.Supp.2d at 31 ); Beer v. Islamic Republic of Iran , 789 F.Supp.2d 14, 26 (D.D.C. 2011). This approach, which may result in awards in the billions of dollars, has been used in the case of exceptionally deadly attacks, such as the 1983 bombing of the Marine barracks in Beirut, which killed 241 American military servicemen. See Baker , 775 F.Supp.2d at 85. A second approach bases punitive damages on \"the ratio of punitive to compensatory damages set forth in earlier cases,\" if similar conduct has been previously litigated. See Spencer v. Islamic Republic of Iran , 71 F.Supp.3d 23, 31 (D.D.C. 2014) ; Goldberg-Botvin v. Islamic Republic of Iran , 938 F.Supp.2d 1, 11-12 (D.D.C. 2013). A third approach awards a fixed amount of $ 150,000,000 per affected family. See Wyatt v. Syrian Arab Republic , 908 F.Supp.2d 216, 233 (D.D.C. 2012) (awarding $ 300,000,000 in total to two victims and their families); Baker , 775 F.Supp.2d at 86 (awarding $ 150,000,000 each to families of three deceased victims); Gates , 580 F.Supp.2d at 75 (awarding $ 150,000,000 each to the estates" }, { "docid": "3004335", "title": "", "text": "supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others. The character of these acts merits an award of punitive damages. See, e.g., Cronin v. Islamic Republic of Iran, 238 F.Supp.2d 222, 235 (D.D.C.2002) (finding the character of the defendant’s act— where the defendant provided material support and resources to terrorist organizations to carry out acts such as kidnapping and torture — supported a punitive damage award of $300,000,000). Syria continues to fund terrorist organizations, as noted by Dr. Marius Deeb in his testimony, supra; he testified that Syria, as a state sponsor of terrorism, spends between U.S. $500,000,000 (at a minimum) and U.S. $700,000,000 annually on terrorism-related expenditures. Thus, not only is there a need for deterrence, but there is evidence that the defendant has substantial wealth. Finally, Syria has become more actively involved in litigation in this Circuit; it appealed the judgment in the Gates I case, and filed a motion for relief from judgment in the district court. Gates v. Syrian Arab Republic, 646 F.Supp.2d 79, 81-82 (D.D.C. 2009) (“Gates II”). Recent cases have taken different approaches in determining the appropriate amount of punitive damages in terrorism cases. In Valore, Heiser, and Acosta, the Court held that an appropriate measure of punitive damages was the state’s annual expenditures on terrorism multiplied by a number from three to five. Valore, 700 F.Supp.2d at 88-90; Heiser, 659 F.Supp.2d at 30-31; Acosta, 574 F.Supp.2d at 31. In Gates I, on the other hand, the Court awarded each of the families $150 million in punitive damages, for a total of $300 million. Gates I, 580 F.Supp.2d at 75. Examining these cases helps determine which method is most appropriate. In Valore, where the Court multiplied the amount expended each year by five, the Court pointed out that Iran had begun to participate more actively in litigation in the United States. Valore, 700 F.Supp.2d at 89. The Court hypothesized that, in light of Iran’s “paying more attention to the cases that have been brought" }, { "docid": "20739240", "title": "", "text": "the victim an amount of money that will punish outrageous behavior and deter such outrageous conduct in the future.” Id. In determining the proper punitive damages award, courts evaluate four factors: “(1) the character of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Acosta, 574 F.Supp.2d at 30. Here, the nature of the defendants’ act and the nature and extent of the harm defendants intentionally caused are among the most heinous the Court can fathom. Bodoff, 424 F.Supp.2d at 88 (determining this bus bombing to be “extremely heinous”). “The defendants’ demonstrated policy of encouraging, supporting and directing a campaign of deadly terrorism is evidence of the monstrous character of the bombing that inflicted maximum pain and suffering on innocent people.” Id. (quoting Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 278 (D.D.C.2003)). As to deterrence and wealth, Iran is a foreign state with substantial wealth that has expended significant resources sponsoring terrorism. See Oveissi, 879 F.Supp.2d at 55-56. Dr. Patrick Clawson, an expert on Iranian terrorism activities, has testified in several cases on the amounts of punitive damages that would serve to deter Iran from supporting terrorist activities against nationals of the United States. See, e.g., Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 32 (D.D.C.1998); Reiser, 659 F.Supp.2d at 30. Dr. Clawson declared that “the financial material support provided by Iran in support of terrorism is in the range of $300 million to $500 million a year.” Clawson Aff. ¶ 4, 2010 WL 1954991, Valore, 700 F.Supp.2d 52 (03-cv-1959, ECF No. 58). Dr. Clawson based his range on Iran’s provision of approximately $200 million in direct cash assistance to Hezbollah in 2008, as well as the provision since 2006 of “many tens of millions of dollars” worth of sophisticated weaponry, including some 40,000 rockets. Id. ¶ 3.a. (citing U.S. Dep’t of State, Country Reports on Terrorism 2008, at 183 (2009), available at http:// www.state.gov/documents/organization/ 122599.pdf). In addition, the Court finds it appropriate" }, { "docid": "20858950", "title": "", "text": "the nature and extent of harm to the plaintiffs that defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.’ ” Acosta, 574 F.Supp.2d at 30 (internal citations omitted). Courts have found these factors to be satisfied when a defendant has provided material support to a terrorist organization in carrying out an act of terrorism. See, e.g., Baker, 775 F.Supp.2d at 85 (finding that an award of punitive damages was warranted where “defendants supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others”); Cronin v. Islamic Republic of Iran, 238 F.Supp.2d 222, 235 (D.D.C.2002) (finding that an award of punitive damages was warranted where “[t]he defendant organized, trained, and funded [terrorist organizations] so that [they] could torture and take individuals like the plaintiff hostage”). 2. Analysis In this case, punitive damages are clearly warranted. First, when the Cole was bombed, it was manned by 26 officers and 270 enlisted personnel. See Findings of Fact supra ¶ 8. The result of the bombing was the death of 17 American sailors and the injury of 42 others. Id. ¶ 10. This was, without a doubt, a heinous act. The defendants’ provision of material support to the perpetrators of that bombing was no less heinous. See Harrison, 882 F.Supp.2d at 50 (finding that “[w]hile Sudan’s support of A1 Qaeda [in the bombing of the Cole] does not rise to level of direct involvement in the attacks, it was nonetheless intentional, material and, as a result, reprehensible”). Second, in supporting Bin Laden and Al-Qaeda, the defendants’ intention was clearly to further their own Anti-Western, Anti-American agenda. See Findings of Fact supra ¶¶ 11-16 (Sudanese defendants); ¶¶ 35-39 (Iranian defendants). Third, numerous courts have acknowledged that the need to deter these defendants from committing future terrorist acts is great. See, e.g., Onsongo v. Republic of Sudan, No. 08-CIV-1380, 60 F.Supp.2d 144, 151-52, 2014 WL 3702875, at *5 (D.D.C. July 25, 2014) (awarding punitive damages against Sudan following the" }, { "docid": "4899986", "title": "", "text": "290 (quoting Bodoff v. Islamic Republic of Iran, 907 F.Supp.2d 93, 105 (D.D.C. 2012) (internal quotation marks omitted)); see also Restatement (Second) of Torts § 908(1) (1977). Punitive damages are warranted where “defendants supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others.” Baker, 775 F.Supp.2d at 85. The defendants’ conduct in supporting Hamas justifies the imposition of punitive damages here. In determining the appropriate amount of punitive damages, courts consider “(1) the character of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Wultz, 864 F.Supp.2d at 41 (quoting Acosta, 574 F.Supp.2d at 30). Taking into account these factors, several approaches have been articulated for calculation of the appropriate amount of punitive damages in state-sponsored terrorism cases involving Iran, Syria, and other similar defendants. One approach is to multiply the foreign state’s “annual expenditures on terrorism” by a factor between three and five. See Baker, 775 F.Supp.2d at 85 (citing Valore, 700 F.Supp.2d at 88-90; Estate of Heiser, 659 F.Supp.2d at 30-31; Acosta, 574 F.Supp.2d at 31); Beer v. Islamic Republic of Iran, 789 F.Supp.2d 14, 26 (D.D.C. 2011). This approach, which may result in awards in the billions of dollars, has been used in the case of exceptionally deadly attacks, such as the 1983 bombing of the Marine barracks in Beirut, which killed 241 American military servicemen. See Baker, 775 F.Supp.2d at 85. Another approach awards a fixed amount of $150,000,000 per affected family. See Wyatt, 908 F.Supp.2d at 233 (awarding $300,000,000 in total to two victims and their families); Baker, 775 F.Supp.2d at 86 (awarding $150,000,000 each to families of three deceased victims); Gates, 580 F.Supp.2d at 75 (awarding $150,000,000 each to the estates of two victims). The defendants’ conduct in providing material support to the terrorist group that perpetrated the attacks here is indeed outrageous, and the results are indisputably tragic. The conduct" }, { "docid": "18078863", "title": "", "text": "because of this Court’s adjustment of pain-and-suffering awards. Hence, the Court will reduce those solatium awards to match corresponding pain-and-suffering awards where appropriate. b. Punitive Damages Plaintiffs • request punitive damages under section 1605A(c). Punitive damages “serve to punish and deter the actions for which they are awarded.” Valore, 700 F.Supp.2d at 87. Courts calculate the proper amount of punitive damages by considering four factors: “(1) the character of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Oveissi II, 879 F.Supp.2d at 56 (quoting Acosta, 574 F.Supp.2d at 30). In this case, the first three factors weigh heavily in favor of an award of punitive damages: the character of defendants’ actions and the nature and extent of harm to plaintiffs can accurately be described as horrific. Scores were, murdered, hundreds of families were torn asunder, and thousands of lives were irreparably damaged. The need for deterrence here is tremendous. And although specific evidence in the record on defendants’ wealth is scant, they are foreign states with substantial wealth. Previous courts in this district, confronted with similar facts, have calculated punitive damages in different ways. See, e.g., Baker, 775 F.Supp.2d at 85 (surveying cases). One attractive method often used in FSIA cases is to multiply defendants’ annual expenditures on terrorist activities by a factor of three to five. See, e.g., Valore, 700 F.Supp.2d at 88-90. Unfortunately, there is not enough evidence in the record on defendants’ expenditures during the relevant time period to adopt that approach here. Other courts have simply awarded families of terrorism victims $150 million in punitive damages. See, e.g., Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 75 (D.D.C.2008), aff'd, 646 F.3d 1 (D.C.Cir.2011). Using that approach here would result in a colossal figure, given the number of families involved. This case, when combined with the related cases involving the same bombings where plaintiffs seek punitive damages, involves over 600 plaintiffs. Valore was a similar case, involving another terrorist bombing sponsored by" }, { "docid": "20739239", "title": "", "text": "the decedent’s estate as against Khamenei. Here, the Court will confirm the prior compensatory damages judgment, now extended to defendant MOIS. Thus, plaintiffs shall be awarded a judgment in their favor and against defendants Iran and MOIS, jointly and severally, in the amount of $16,988,300. The award shall be distributed among plaintiffs in the same manner as this Court ruled in the first Bodoff case. This judgment shall be enforceable under the terms of the newly enacted statute. In order to avoid double recovery, plaintiffs may not seek to enforce the prior judgment for $16,988,300. B. Punitive Damages “Punitive damages, made available under the revised FSIA terrorism exception, serve to punish and deter the actions for which they are awarded.” Oveissi, 879 F.Supp.2d at 55-56 (citing In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d at 61; Heiser, 659 F.Supp.2d at 29-30; Acosta v. The Islamic Republic of Iran, 574 F.Supp.2d 15, 30 (D.D.C.2008); Restatement (Second) of Torts § 908(1)). “Punitive damages are not meant to compensate the victim, but instead meant to award the victim an amount of money that will punish outrageous behavior and deter such outrageous conduct in the future.” Id. In determining the proper punitive damages award, courts evaluate four factors: “(1) the character of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Acosta, 574 F.Supp.2d at 30. Here, the nature of the defendants’ act and the nature and extent of the harm defendants intentionally caused are among the most heinous the Court can fathom. Bodoff, 424 F.Supp.2d at 88 (determining this bus bombing to be “extremely heinous”). “The defendants’ demonstrated policy of encouraging, supporting and directing a campaign of deadly terrorism is evidence of the monstrous character of the bombing that inflicted maximum pain and suffering on innocent people.” Id. (quoting Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 278 (D.D.C.2003)). As to deterrence and wealth, Iran is a foreign state with substantial wealth that has expended significant" }, { "docid": "19443272", "title": "", "text": "each, to account for their \"first-hand observations and acute memories of [their] child's death,\" Braun , 228 F.Supp.3d at 86, and their agonizing wait for him to return home, see Kim , 87 F.Supp.3d at 290 (awarding $ 15 million each to brother and son of victim kidnapped and killed by North Korea). 5. Punitive Damages (All Plaintiffs) The plaintiffs also seek punitive damages, which are awarded not to compensate the victims, but to \"punish outrageous behavior and deter such outrageous conduct in the future.\" Kim , 87 F.Supp.3d at 290 (internal quotation marks omitted) (quoting Bodoff v. Islamic Republic of Iran , 907 F.Supp.2d 93, 105 (D.D.C. 2012) ); see also RESTATEMENT (SECOND) OF TORTS § 908(1) (1979). Punitive damages are warranted where \"defendants supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others.\" Baker , 775 F.Supp.2d at 85. North Korea's conduct toward Otto justifies the imposition of significant punitive damages here. See, e.g., Hekmati , 278 F.Supp.3d at 166 (punitive damages awarded where plaintiff was held in solitary confinement, beaten, threatened, and psychologically battered for years in Iran). In determining the appropriate amount of punitive damages, courts consider \"(1) the character of the defendants' act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.\" Wultz v. Islamic Republic of Iran , 864 F.Supp.2d 24, 41 (D.D.C. 2012) (quoting Acosta , 574 F.Supp.2d at 30 ). Taking these factors into account, several approaches have been articulated for calculation of the appropriate amount of punitive damages in state-sponsored terrorism cases. One approach is to multiply the foreign state's \"annual expenditures on terrorism\" by a factor between three and five. See Baker , 775 F.Supp.2d at 85 (citing Valore , 700 F.Supp.2d at 88-90 ; Estate of Heiser v. Islamic Republic of Iran , 659 F.Supp.2d 20, 30-31 ; Acosta , 574 F.Supp.2d at 31 ); Beer v. Islamic Republic" }, { "docid": "18078864", "title": "", "text": "although specific evidence in the record on defendants’ wealth is scant, they are foreign states with substantial wealth. Previous courts in this district, confronted with similar facts, have calculated punitive damages in different ways. See, e.g., Baker, 775 F.Supp.2d at 85 (surveying cases). One attractive method often used in FSIA cases is to multiply defendants’ annual expenditures on terrorist activities by a factor of three to five. See, e.g., Valore, 700 F.Supp.2d at 88-90. Unfortunately, there is not enough evidence in the record on defendants’ expenditures during the relevant time period to adopt that approach here. Other courts have simply awarded families of terrorism victims $150 million in punitive damages. See, e.g., Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 75 (D.D.C.2008), aff'd, 646 F.3d 1 (D.C.Cir.2011). Using that approach here would result in a colossal figure, given the number of families involved. This case, when combined with the related cases involving the same bombings where plaintiffs seek punitive damages, involves over 600 plaintiffs. Valore was a similar case, involving another terrorist bombing sponsored by Iran: the bombing of the United States Marine barracks in Beirut, Lebanon. Two hundred and forty-one military servicemen were murdered in that bombing. A similar number of people, 224, died here, and hundreds more were injured. In Valore, then-Chief Judge Lamberth used the expenditures-times-multiplie'r method. All told, Judge Lamberth awarded approximately $4 billion in compensatory damages in cases involving the Beirut bombing and about $5 billion in punitive damages. Estate of Brown v. Islamic Republic of Iran, 872 F.Supp.2d 37, 45 n. 1 (D.D.C.2012) (tallying awards). This case is quite similar in magnitude: all told, including the judgments issued in Owens, Mwila, and Khaliq, and the judgments to be issued in conjunction with this opinion and in Wam-a% Amduso, and Onsongo, the Court will have issued just over $5 billion in compensatory damages. Given that similarity, the inability of this Court to employ the expenditure-timesTmultiplier method, and in light of the “societal interests in punishment and deterrence that warrant imposition of punitive sanctions” in cases like this, the Court finds it appropriate to award punitive" }, { "docid": "9651315", "title": "", "text": "held liable for punitive damages. See 28 U.S.C. § 1605A(c). The purpose of punitive damages is to “punish [the defendant] for [its] outrageous conduct and to deter [it] and others like [it] from [engaging in] similar conduct in the future.” Restatement (Second) of Torts § 908(1). Further, punitive damages may be awarded “for conduct that is outrageous, because of the defendant’s evil motive or [its] reckless indifference to the rights of others.” Id. Here, the Court finds that Iran’s actions are sufficiently outrageous to support an award of punitive damages because its “demonstrated policy of encouraging, supporting and directing a campaign of ... terrorism is evidence of the monstrous character of the [attack] that inflicted ... pain and suffering on [an] innocent pe[rson].” Valore, 700 F.Supp.2d at 88. Moreover, “[p]unitive damages are warranted where ‘defendants supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others.’ ” Braun, 228 F.Supp.3d at 86, 2017 WL 79937, at *14 (citing Baker v. Socialist People’s Libyan Arab Jamahirya, 775 F.Supp.2d 48, 85 (D.D.C. 2011)). The Court agrees with another member of this Court’s conclusion that Iran’s “support[ ] [of] Hamas justifies the imposition of punitive damages here.” Id.; see also Acosta, 574 F.Supp.2d at 30-31 (concluding that punitive damages were warranted to punish Iran for its material support of terrorist groups). “[C]ourts in similar cases have generated two numbers that, together, determine the punitive- damages award: (1) the multiplicand and (2) the multiplier .... ” Harrison, 882 F.Supp.2d at 50. “[T]he multiplicand is either the magnitude of the defendant’s annual expenditures on terrorist activities or the amount of compensatory damages already awarded.” Id Here, Clawson states that Iran pledged $250 million to Hamas for 2006 through 2007, see Clawson Decl. ¶ 36, and Iran “decided to increase its financial support for Hamas to $150 million for the second half of 2008,” id. ¶ 44. The approach of using Iran’s annual expenditures on terrorist activities, “which may result in awards of billions of dollars, has been" }, { "docid": "20858949", "title": "", "text": "from PTSD); Id. at ¶ 21 (concluding that Plaintiff D suffers from “traumatic grief’ or “persistent complex bereavement-related disorder”); Id. at ¶ 28 (concluding that Plaintiff E suffers from “traumatic grief’ or “persistent complex bereavement-related disorder”). Under these circumstances an upward departure of 25% of the baseline is warranted. Accordingly, each plaintiff shall be awarded the following damages for so-latium: Plaintiff Relationship to Kevin Baseline Award 25% Enhancement Total Solatium Damages Plaintiff A Mother $5,000,000 $1,250,000 $6,250,000 Plaintiff B Brother $2,500,000 $625,000 $3,125,000 Plaintiff C Brother $2,500,000 $625,000 $3,125,000 Plaintiff D Brother $2,500,000 $625,000 $3,125,000 Plaintiff E Brother $2,500,000 $625,000 $3,125,000 C. Punitive Damages 1. Legal Standard “[T]he purpose of punitive damages is ‘to punish’ a defendant for ‘outra geous conduct,’ and ‘to deter him and others like him from similar conduct in the future.’ ” Baker, 775 F.Supp.2d at 84 (citing Restatement (Second) of ToRts § 908(1) (1977)). In calculating an award of punitive damages under section 1605A of the FSIA, courts evaluate four factors: “ ‘(1) the character of the defendant’s act, (2) the nature and extent of harm to the plaintiffs that defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.’ ” Acosta, 574 F.Supp.2d at 30 (internal citations omitted). Courts have found these factors to be satisfied when a defendant has provided material support to a terrorist organization in carrying out an act of terrorism. See, e.g., Baker, 775 F.Supp.2d at 85 (finding that an award of punitive damages was warranted where “defendants supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others”); Cronin v. Islamic Republic of Iran, 238 F.Supp.2d 222, 235 (D.D.C.2002) (finding that an award of punitive damages was warranted where “[t]he defendant organized, trained, and funded [terrorist organizations] so that [they] could torture and take individuals like the plaintiff hostage”). 2. Analysis In this case, punitive damages are clearly warranted. First, when the Cole was bombed, it was manned by 26 officers and 270" }, { "docid": "2651883", "title": "", "text": "terrorism. See Bodojf v. Islamic Republic of Iran, 907 F.Supp.2d 93, 105 (D.D.C.2012). Four factors are relevant in deciding the level of punitive damages appropriate in a given case: “(1) the character of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Id. (internal citation omitted). One additional factor is relevant: in situations where punitive damages have been awarded repeatedly against a defendant for the same conduct in a series of lawsuits, the Court should consider whether to limit such damages so as not to over-punish that defendant for that particular conduct. See Murphy, 740 F.Supp.2d at 81. In cases where this factor has been salient, the Court has tied punitive damages to compensatory damages by applying a multiplier to the amount of compensatory damages awarded. Id. at 81-83. As to the factors relating to the need for deterrence and the wealth of the defendants, this Court has repeatedly adopted a method for calculating an appropriate amount of damages based on the magnitude of the defendant’s support for terrorism. The Court has generally considered an estimate of the defendant state’s annual expenditure in support of terrorist organizations and applied a multiplier to it, usu ally between three and five. Haim v. Islamic Republic of Iran, 784 F.Supp.2d 1, 13 (D.D.C.2011). This method is calibrated to produce an award that, while proportional to a defendant’s acts, is large enough to have a deterrent effect on the foreign state. Estate of Heiser, 659 F.Supp.2d at 30-31. e. Prejudgment interest Whether to award prejudgment interest is a matter committed to the discretion of the court, subject to equitable considerations. Oldham v. Korean Air Lines Co., 127 F.3d 43, 54 (D.C.Cir.1997). Prejudgment interest may be awarded on compensatory damages but there are limitations on when such awards are appropriate. First, prejudgment interest should not be added to economic loss damages when such awards are already discounted to present value because this would result in double counting of the interest multiplier." }, { "docid": "4763378", "title": "", "text": "of Torts § 908(1)). Punitive damages are not meant to compensate the victim, but instead meant to award the victim an amount of money that will punish outrageous behavior and deter such outrageous conduct in the future. In determining the proper punitive damages award, courts evaluate four factors: “(1) the character of the defendants’ act, (2) the nature and extent of harm to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Acosta, 574 F.Supp.2d at 30 (citing Flatow, 999 F.Supp. at 32 (citing Restatement (Second) of Torts § 908)). The nature of the defendants’ acts and the nature and extent of the harm defendants intentionally caused are among the most heinous the Court can fathom. See Bodoff, 424 F.Supp.2d at 88 (determining a bus bombing, for which Iran was held liable, to be “extremely heinous”). “The defendants’ demonstrated policy of encouraging, supporting and directing a campaign of deadly terrorism is evidence of the monstrous character of the bombing that inflicted maximum pain and suffering on innocent people.” Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258, 278 (D.D.C.2003) (concerning a separate bus bombing for which Iran and MOIS were held liable). As to deterrence and wealth, Dr. Patrick Clawson, an expert on Iranian terrorism activities, has testified in several cases on the amounts of punitive damages that would serve to deter Iran from supporting terrorist activities against nationals of the United States. See, e.g., Flatow, 999 F.Supp. at 32; Heiser II, 659 F.Supp.2d at 30. Two numbers are at issue: the multiplicand — the amount of Iran’s annual expenditures on terrorist activities — and the multiplier — the factor by which the multiplicand should be multiplied to yield the desired deterrent effect. Concerning the multiplicand, most recently in Valore, Dr. Clawson declared that “the financial material support provided by Iran in support of terrorism is in the range of $300 million to $500 million a year.” Clawson Aff. ¶ 4, Valore, 700 F.Supp.2d 52 (D.D.C.2010), ECF No. 58. Dr. Clawson based his range on Iran’s provision" }, { "docid": "3004334", "title": "", "text": "for the loss suffered by each individual family member as a result of Pflug’s ordeal: Estate of Rylma Nink (mother) $2,500,000 Eugene Nink (father) $2,500,000 Mary Nink O’Donnell (sister) $1,250,000 Gloria Nink (sister) $1,250,000 Scott Pflug (spouse 1985-1988) $2,000,000 A Punitive Damages Punitive damages against the state were not available until the 2008 revisions to the FSIA. Valore, 700 F.Supp.2d at 87. According to the Restatement (Second) of Torts, the purpose of punitive damages is “to punish” a defendant for “outrageous conduct,” and “to deter him and others like him from similar conduct in the future.” Restatement (Second) of Torts § 908(1) (1977); see also Acosta, 574 F.Supp.2d at 30. Courts evaluate four factors in determining a proper punitive damages award: “(1) the character of the defendant’s act, (2) the nature and extent of harm to the plaintiffs that defendants caused or intended to cause, (3) the need for deterrence, and (4) the wealth of the defendants.” Acosta, 574 F.Supp.2d at 30 (quoting Flatow, 999 F.Supp. at 32). In this case, the evidence shows defendants supported, protected, harbored, aided, abetted, enabled, sponsored, conspired with, and subsidized a known terrorist organization whose modus operandi included the targeting, brutalization, and murder of American citizens and others. The character of these acts merits an award of punitive damages. See, e.g., Cronin v. Islamic Republic of Iran, 238 F.Supp.2d 222, 235 (D.D.C.2002) (finding the character of the defendant’s act— where the defendant provided material support and resources to terrorist organizations to carry out acts such as kidnapping and torture — supported a punitive damage award of $300,000,000). Syria continues to fund terrorist organizations, as noted by Dr. Marius Deeb in his testimony, supra; he testified that Syria, as a state sponsor of terrorism, spends between U.S. $500,000,000 (at a minimum) and U.S. $700,000,000 annually on terrorism-related expenditures. Thus, not only is there a need for deterrence, but there is evidence that the defendant has substantial wealth. Finally, Syria has become more actively involved in litigation in this Circuit; it appealed the judgment in the Gates I case, and filed a motion for relief from" } ]

[ { "docid": "23662689", "title": "", "text": "special factor within the meaning of the EAJA. The Secretary also contests the district court’s allowance of 200 hours. Although Aston’s counsel probably wasted some time in the drafting of pleadings and memoranda and in unnecessarily moving for summary judgment in 1981, the district court has broad discretion in this area. The court did reduce the number of allowable hours from Aston’s requested 230 to 200. The district court need not have scrutinized each action taken or the time spent on it, New York Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983), and the unnecessary summary judgment motion was not separable from the claim on which Aston ultimately prevailed. McCann v. Coughlin, 698 F.2d 112, 129-30 (2d Cir.1983). The district court’s allowance of 200 hours will not be disturbed. Finally, the Secretary attacks the district court’s allowance of $555.55 in telephone, postage, travel and photocopying costs. We hold that these expenses are reimbursable under the EAJA as reasonable “fees and other expenses.” 28 U.S.C. § 2412(d)(2)(A). See International Woodworkers of America, 769 F.2d at 1392 (all costs normally billed to client recoverable under EAJA). But see Action on Smoking and Health, 724 F.2d at 223-24 (costs of travel, filing, wrapping and postage not compensable under EAJA). The examples of allowable expenses set out in section 2412(d)(2)(A) are not exclusive. The district court’s allowance of $555.55 need not be disturbed. We amend the judgment by reducing the hourly rate from $85 to $75 for a total reduction of $2,000 in the attorney’s fees allowed and affirm the judgment as amended. The parties shall bear their own costs. . The size of a judgment sometimes reflects the quality of representation received by the private litigant, a factor which plays an important part in the computation of attorney’s fees under the civil rights statutes. Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983) (interpreting 42 U.S.C. § 1988). We need not decide whether this factor applies to the calculation of attorney’s fees under the EAJA because there is no indication that the district" } ]

[ { "docid": "5482174", "title": "", "text": "(2d Cir.1986) (telephone, postage, travel, and photocopying costs); International Woodworkers Local 3-98 v. Donovan, 769 F.2d 1388, 1392 (9th Cir. 1985) (telephone, postage and air courier, and attorney travel expenses); Holden v. Bowen, 668 F.Supp. 1042, 1053 (N.D.Ohio 1986). In Vaughn v. Heckler, 860 F.2d 295 (8th Cir. Oct. 17, 1988) (order), this court allowed recovery under the EAJA of photocopying expenses and ordinary postage fees but disallowed recovery of fees necessary to express mail materials to meet court deadlines. The second interpretation is consistent with the statutory objectives of the EAJA. We hold that the district court has the authority under § 2412(d)(2)(A) to award “those reasonable and necessary expenses of an attorney incurred or paid in preparation for trial of the specific case before the court, which expenses are those customarily charged to the client where the case is tried.” Oliveira v. United States, 827 F.2d at 744. Fees for Time Spent on Remand The district court correctly denied counsel’s claim for attorney’s fees under the Social Security Act for work performed in the initial administrative proceedings. Under the Social Security Act, the Secretary has the exclusive authority to award attorney’s fees for representation in administrative proceedings. E.g., Fenix v. Finch, 436 F.2d 831, 838 (8th Cir.1971) (42 U.S.C. § 406(a)). However, because the district court remanded this case to the Secretary for further administrative proceedings, there was a second administrative hearing. In Cornelia v. Schweiker, 728 F.2d 978, 988 (8th Cir.1984), decided under the EAJA as originally enacted in 1980, this court held that a Social Security claimant could not recover attorney’s fees under the EAJA for work performed in administrative proceedings after remand by the district court. In 1985 Congress reenacted and extended the EAJA. Act of Aug. 5, 1985, Pub.L. No. 99-80, 99 Stat. 183. One court has held that the 1985 legislative history, which quotes with approval certain language from the 1980 legislative history, suggests that Cornella v. Schweiker may have mistaken Congressional intent on this issue. See Hudson v. Secretary of HHS, 839 F.2d 1453, 1460 n. 8 (11th Cir.1988), petition for cert." }, { "docid": "1148505", "title": "", "text": "1 (1990) (Court liberally construed the allegations and prayer for relief of pro se appellant). The Secretary stated that he “concedes” that the government position lacked substantial justification “with respect to ... expenses”. Substantial justification is an affirmative defense, and Cook held that where a lack of substantial justification is alleged the burden shifts to the Secretary to prove substantial justification; if the Secretary does not contest the issue, the Court need not address it. Cook, 6 Vet.App. at 237. Section 2412(d)(2)(A) provides that “fees and other expenses” recoverable under subsection (d)(1)(A) “includes the reasonable expenses of expert witnesses, [and] the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party’s case”. (Emphasis added.) Courts are split on the issue of what specific expenses can be recovered under this section. Some courts have held that if a particular expense does not appear as an enumerated item in subsection (d)(2)(A), it cannot be awarded thereunder. See, e.g., Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.1986); Massachusetts Fair Share v. LEAA, 776 F.2d 1066, 1069-70 (D.C.Cir.1985). Other courts have held that the list of expenses in subsection (d)(2)(A) is not exclusive. See, e.g., Vaughn v. Heckler, 860 F.2d 295, 296 (8th Cir.1988) (awarding postage and photocopying expenses); Aston v. Secretary of HHS, 808 F.2d 9, 12 (2d Cir.1986) (awarding telephone, photocopying, travel, and postage expenses); International Woodworkers of America, AFL-CIO, Local 3-98 v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985) (awarding telephone, postage, and travel expenses); SEC v. Kaufman, 835 F.Supp. 157 (S.D.N.Y.1993) (awarding travel, typing services, postage, telephone, transportation, storage of records, and translation expenses); Holden v. Bowen, 668 F.Supp. 1042 (N.D.Ohio 1986) (awarding telephone, messenger service, postage, computer-assisted research, and travel expenses). Following the precedent of the Federal Circuit in Oliveira v. U.S., 827 F.2d 735, 744 (Fed.Cir.1987), that the specific expenses listed in section 2412(d)(2)(A) are not the only expenses that can be recovered, we held in Cook, 6 Vet.App. at 238, that “the definition of fees and other expenses”.... is inclusive" }, { "docid": "15608323", "title": "", "text": "the meaning of “other expenses” under the EAJA exclusively to those examples listed in § 2412(d)(2)(A). In that section, Congress defined “fees and other expenses” to “include”: the reasonable expenses of expert witnesses, the reasonable costs of any study, analysis engineering report, test or project which is found by the court to be necessary for the preparation of the party’s case, and reasonable attorney fees____ On the authority of this language, defendant urges the Court to deny any other expenses sought by plaintiff, such as taxi fares, messenger services, travel expenses, telephone bills and postage. Brunswick responds first that “expert fees” are recoverable under § 2412(d)(2)(A) without reference to the statutory amounts provided in 28 U.S.C. § 1821; second, that “other expenses” under the EAJA permits the award of costs in addition to those specified in 28 U.S.C. § 1920; and, finally, that the definition of “other expenses” set out in § 2412(d)(2)(A) was not meant to be exclusive. The structure of the EAJA indicates that recoverable “fees and expenses” are “in addition to any costs awarded pursuant to” § 1920. 28 U.S.C. § 2412(d)(1)(A). At the same time, those fees and expenses may be awarded only subject to the exceptions “otherwise provided by statute____” Id. Since the EAJA refers to prevailing market rates as a method for determining proper amounts of fees, the Court is dubious of the contention that the amounts awardable were meant to be governed by § 1821. 28 U.S.C. § 2412(d)(2)(A). To the extent that such fees include the reasonable expenses of expert witnesses, it is evident that Congress did not intend the restrictive amounts of § 1821 to apply. As for the claim that only expert fees of witnesses are permitted under the EAJA, the Court finds that the answer turns on whether the list of examples provided in § 2412(d)(2)(A) is exclusive or simply illustrative. Turning again to the structure of the definitions contained in the EAJA, it appears that where the drafters used the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term." }, { "docid": "10927010", "title": "", "text": "Court ordered oral argument on respondents’ motions to take place on April 21, 1989. Later on March 22, 1989, this Court granted respondents’ latter motions to the extent they sought leave to file a brief in reply to applicant’s opposition to their pending motion to dismiss the fee application. Also, the Honorable Richard B. Cheney, the present Secretary of Defense, was substituted as a party vice the Honorable Frank C. Carlucci, III, at that time. Respondents assert that the United States Court of Military Appeals has no jurisdiction to award attorney fees and expenses under 28 USC § 2412. They also assert that the applicant has failed to state a claim under this Act because the applied-for attorney fees and costs were not incurred in a “civil action.” See 28 USC § 2412(d)(1)(A). Finally, they assert that neither the United States Navy-Marine Corps Court of Military Review nor its counsel is a proper “party” to bring this application under EAJA. We hold that the applicant has failed to state a claim under this statute because the requested attorney fees and expenses were not incurred in a “civil action.” See In Re Grand Jury Subpoena Duces Tecum Dated January 2, 1985, 775 F.2d 499 (2d Cir.1985). Applicant rests the claim for attorney fees and other costs on 28 USC § 2412(d)(1)(A). This is a section from the Equal Access to Justice Act, which provides in its entirety: § 2412. Costs and fees (a) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred" }, { "docid": "23506857", "title": "", "text": "position we should adopt. Rawlings v. Heckler, 725 F.2d 1192, 1195 (9th Cir.1984); Spencer v. NLRB, 712 F.2d at 547-48; Knights of the Ku Klux Klan v. East Baton Rouge, 679 F.2d at 68; Alspach v. District Director of Internal Revenue, 527 F.Supp. 225, 228 (D.Md.1981). Contra Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, 703 F.2d 700, 707 (3d Cir.1983) (\"NRDC v. USEPA”). In NRDC, the Third Circuit held that the Act’s definition of “United States” clearly supports the underlying action theory. 703 F.2d at 707. Under the EAJA, “‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” 28 U.S.C. § 2412(d)(2)(C) (emphasis added). We agree with the Third Circuit that this definition provides some support for the underlying action theory. This definitional provision is not conclusive, however, for as pointed out by Judge Hunter in his dissent in NRDC, the Act’s definition of United States “merely recognizes the obvious— that the government as an entity can only take a ‘position,’ whatever the meaning of that term, through its agencies and the individuals who administer its agencies.” 703 F.2d at 718 n. 2. Accord Spencer v. NLRB, 712 F.2d at 547. Section 2412(d)(3) of the EAJA does not apply to our case, but as pointed out by the court in Spencer v. NLRB, 712 F.2d at 547-48, it provides some support for the litigation position theory. Under section 2412(d)(3), a court may award attorneys’ fees incurred as a result of a hearing before an administrative agency. Section 2412(d)(3) directs the court to award attorneys’ fees “to a prevailing party ... unless the court finds that during such adversary adjudication the position of the United States was substantially justified____” 28 U.S.C. § 2412(d)(3) (emphasis added). Thus, the provision adopts the litigation position theory, for it presumes that the government’s “position” for the purposes of assessing its liability for attorneys’ fees resulting from the administrative adjudication is the stance it adopted during litigation, not the stance it adopted prior to litigation. Of course, Congress could have intended that the" }, { "docid": "20685202", "title": "", "text": "JOHNSON, Circuit Judge: This case arose out of the City of Brunswick’s challenge to the determination by the Federal Emergency Management Agency (FEMA) of the flood level figures used in calculating Brunswick’s eligibility for federally subsidized flood insurance. The United States District Court for the Southern District of Georgia awarded Brunswick $324,492.16 in attorney fees, costs, and other expenses pursuant to the Equal Access to Justice Act, 28 U.S.C.A. § 2412. See City of Brunswick v. United States, 661 F.Supp. 1431 (S.D.Ga.1987). On appeal, the government challenges, inter alia, the district court’s determinations that Brunswick met EAJA’s “net worth” requirement and that the “position of the United States” was not “substantially justified.” We agree with the government and thus reverse the district court. I. Brunswick’s Net Worth As relevant to this issue, recovery under EAJA requires that the prevailing party be a “unit of local government, ... the net worth of which did not exceed $7,000,000 at the time the civil action was filed.” 28 U.S.C.A. § 2412(d)(2)(B)(ii). The district court rejected the government’s argument that Brunswick’s net worth exceeded $7 million when the civil action was filed in July 1985. We reverse the district court. This issue, apparently a question of first impression, turns on the definition of “net worth.” The government relies on the “Annual Financial Report of the City of Brunswick for the Fiscal Year Ended June 30, 1985.” The report, prepared by certified public accountants retained by Brunswick, shows a “Total Municipal Equity” of $22,010,596. The government’s expert witness explained in an affidavit that “Total Municipal Equity” as used in the report equates to Brunswick’s net worth. Consequently, the government argues that by exceeding EAJA’s net worth limit Brunswick cannot recover under EAJA. Brunswick responds that its net worth is less than $7 million because the term “net worth” should not include “restricted” assets (those assets not generally available to meet the payment of debts). Specifically, Brunswick argues that the government erred by counting Brunswick’s water and sewage system as an asset. The inclusion or exclusion of this system determines whether Brunswick’s net worth exceeds EAJA’s" }, { "docid": "22447409", "title": "", "text": "223-24 (D.C.Cir.1984); Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.1986). Wyandotte suggests that no litigation expenditure (other than attorney’s fees) is recoverable under the EAJA unless it is one of the costs enumerated in 28 U.S.C. § 1920. See 682 F.2d at 120. This approach reads key language out of the Act. Section 2412(d)(1)(A) provides that “fees” and other “expenses” are awarded “in addition to any costs awarded pursuant to subsection (a),” the subsection treating section 1920 costs. Action on Smoking, without analysis, holds that the EAJA does not authorize an award for expenses similar to those awarded in this case. 724 F.2d at 223-24. It relies instead on NAACP v. Donovan, 554 F.Supp. 715, 719 (D.C.Cir.1982). The NAACP opinion, however, reads the Act to authorize only those “expenses” listed in subsection 2412(d)(2)(A) or those of a like nature. We will not apply the rule of statutory construction known as ejusdem gen-eris in this case for the reasons given by Judge Alaimo in City of Brunswick. Weakley is unhelpful because it relies totally on Wyandotte and the D.C. Circuit’s rulings on the matter. An examination of the nature of the expenses listed in the Act reinforces our read ing of it. Items such as engineering reports and studies are extraordinary expenditures not commonly necessary to the preparation of a lawsuit. By including these unusual items in the list of reimbursable expenses, Congress enlarged, rather than contracted, the category of expenditures that are reimbursable under the EAJA. Thus, we reject the government’s argument that telephone, reasonable travel, postage, and computerized research expenses are not compensable under the EAJA. See International Woodworkers of America v. Donovan, 792 F.2d 762, 767 (9th Cir.1985) (expenses routinely billed to a client — telephone, air courier, attorney travel — are recoverable under the EAJA); Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986) (affirming award of telephone, postage, travel and photocopying expenses). The limitation on the amount and nature of such expenses is that they must be “necessary to the preparation of the [prevailing] party’s case.” 28 U.S.C. § 2412(d)(2)(A)." }, { "docid": "16953608", "title": "", "text": "in the veteran’s favor, citing Brown v. Gardner, 513 U.S. 115, 117-18, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). Based on this canon of construction, Bazalo asserts that the EAJA statute should be interpreted as requiring notice to the government that a veteran is seeking reasonable fees and expenses within the thirty-day time period, but allowing supplementation of thé application to show the additional requirements that the veteran is a prevailing party, that the veteran is eligible for an award, that the government’s position is not substantially justified, or that the fees sought are supported by an itemized statement. Bazalo relies on an abundance of cases from other circuits that have allowed such supplementation of a timely filed EAJA application that was deficient in a requirement of § 2412(d)(1)(B). See Thomas v. Peterson, 841 F.2d 332, 336 (9th Cir.1988) (allowing amendment to an EAJA application on remand to establish the applicant was an eligible party); Olenhouse v. Commodity Credit Corp., 922 F.Supp. 489, 491 (D.Kan. 1996) (allowing applicants to amend their EAJA application after the thirty-day filing period to establish compliance with the net worth requirement absent prejudice to the government); Federal Deposit Ins. Corp. v. Addison Airport of Texas, Inc., 733 F.Supp. 1121, 1125 (N.D.Tex.1990) (EAJA applicant allowed to amend the application after the thirty-day filing period); City of Brunswick v. United States, 661 F.Supp. 1431, 1439 (S.D.Ga.1987) (holding once an applicant has complied with the thirty-day filing requirement, he may provide additional information as set forth in § 2412(d)(1)(B) by supplemental filing), rev’d on other grounds, 849 F.2d 501 (11th Cir.1988), cert. denied, 489 U.S. 1053, 109 S.Ct. 1313, 103 L.Ed.2d 582 (1989). But see Federal Deposit Ins. Corp. v. Fleischer, No. 93-2062-JWL, 1996 WL 707030, at *4 (D.Kan. Oct.16, 1996) (EAJA application found insufficient for failure to file an itemized statement of fees incurred within thirty day filing requirement); United States v. Hopkins Dodge Sales, Inc., 707 F.Supp. 1078 (D.Minn.1989) (showing of eligibility held to be a jurisdictional requirement). Lastly, Bazalo argues that his EAJA application met the standard for a non-defective application as set forth by" }, { "docid": "22447406", "title": "", "text": "to a “broad spectrum of litigation” can count. See 108 S.Ct. at 2553. C. Other Components of the Award 1. Costs The EAJA authorizes the recovery of three types of litigation expenditures. First, under 28 U.S.C. § 2412(a), a prevailing party opposing the United States in “any civil action” “may be awarded” costs as delineated in 28 U.S.C. § 1920. The second and third types of expenditures in- eluded in the statute are “fees and other expenses,” which a district court must award to a party who prevails against the United States in “any civil action (other than cases sounding in tort)” when the government fails to demonstrate that its position was substantially justified. 28 U.S.C. § 2412(d)(1)(A). The government contests the district court’s award of certain litigation expenditures that the district court found to constitute “fees and other expenses.” The Act provides a partial definition of these terms: “fees and other expenses” include the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party’s case, and reasonable attorney’s fees ...; 28 U.S.C. § 2412(d)(2)(A) (emphasis added). The government argues that these terms must be given a limited construction since the EAJA represents a waiver of the United States’ sovereign immunity. The problem with this interpretation is that “fees” and “expenses” are defined in the Act by example, rather than by limitation. In this regard, we agree with the following observations by Chief Judge Alaimo of the Southern District of Georgia: Turning ... to the structure of the definitions contained in the EAJA, it appears that where the drafters used the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term. For example, § 2412(d)(2)(G) provides that “ ‘court’ includes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States" }, { "docid": "10927025", "title": "", "text": "to be all-inclusive. City of Brunswick v. United States, 661 F.Supp. 1431, 1444-45 (S.D.Ga.1987) (emphasis in original), rev’d on other grounds, 849 F.2d 501 (11th Cir.1988). (First emphasis added.) Since the word “includes” is not a word of limitation, respondents’ second jurisdictional attack also fails. Accordingly, we hold that the United States Court of Military Appeals is “a court” for purposes of this Act. The second basis posited by respondents for dismissal of this application for fees and expenses is that such expenditures were not incurred in a “civil action” as required by EAJA. They note that the United States, as sovereign, is not liable for costs unless specific provisions for such liability is made by law. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 268 n. 42, 95 S.Ct. 1612, 1627 n. 42, 44 L.Ed.2d 141 (1975). Then they argue that EAJA creates such a waiver of liability only in certain “civil actions]” involving the Government which do not include petitions for extraordinary relief in the military justice system. Strictly construing this waiver in favor of the sovereign, as we must, we agree. See generally Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986); Owens v. Brock, 860 F.2d 1363, 1366 (6th Cir.1988). Initially, we note that the legal action for which attorney fees and expenses are sought in this application was a petition for extraordinary relief in the nature of an injunction against certain officers or officials of the United States. See generally Sullivan v. Hudson, — U.S. —, 109 S.Ct. 2248, 2253, 104 L.Ed.2d 941 (1989); Boudin v. Thomas, 732 F.2d 1107, 1114-15 (2d Cir.1984). Moreover, as pointed out by the applicant, the respondents maintained at an early point in those proceedings that the above action was a “civil cause of action” not within the jurisdiction of this Court. Finally, we are well aware that some might construe our action on the above petition as judicial review of the decision" }, { "docid": "5482173", "title": "", "text": "in connection with subsequent litigation over the EAJA award itself). Expenses The case law is also divided on the scope of expenses recoverable under 28 U.S.C. § 2412(d)(2)(A). Counsel seeks compensation for out-of-pocket litigation expenses such as telephone calls, postage, air courier costs, and travel expenses. Some courts have viewed the specific items set forth in § 2412(d)(2)(A) as an exclusive list of the expenses compensable under the EAJA. E.g., Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.1986) (no postage fees); Massachusetts Fair Share v. LEAA, 249 U.S.App.D.C. 400, 776 F.2d 1066, 1069-70 (1985) (only duplicating costs allowed); Action on Smoking & Health v. CAB, 233 U.S.App.D.C. 79, 724 F.2d 211, 223-24 (1984) (only photocopying costs allowed). However, other courts have rejected this view and instead regard the specific items listed only as examples of expenses for which compensation may be granted. E.g., Oliveira v. United States, 827 F.2d 735, 744 (Fed.Cir.1987); Granville House, Inc. v. Department of HEW, 813 F.2d 881, 884 (8th Cir.1987); Aston v. Secretary of HHS, 808 F.2d 9, 12 (2d Cir.1986) (telephone, postage, travel, and photocopying costs); International Woodworkers Local 3-98 v. Donovan, 769 F.2d 1388, 1392 (9th Cir. 1985) (telephone, postage and air courier, and attorney travel expenses); Holden v. Bowen, 668 F.Supp. 1042, 1053 (N.D.Ohio 1986). In Vaughn v. Heckler, 860 F.2d 295 (8th Cir. Oct. 17, 1988) (order), this court allowed recovery under the EAJA of photocopying expenses and ordinary postage fees but disallowed recovery of fees necessary to express mail materials to meet court deadlines. The second interpretation is consistent with the statutory objectives of the EAJA. We hold that the district court has the authority under § 2412(d)(2)(A) to award “those reasonable and necessary expenses of an attorney incurred or paid in preparation for trial of the specific case before the court, which expenses are those customarily charged to the client where the case is tried.” Oliveira v. United States, 827 F.2d at 744. Fees for Time Spent on Remand The district court correctly denied counsel’s claim for attorney’s fees under the Social Security Act for work performed in" }, { "docid": "3782215", "title": "", "text": "actions in federal courts, and does not encompass administrative agency actions. Broad Avenue Laundry & Tailoring v. United States, 693 F.2d 1387, 1390 (Fed.Cir.1982); see also Morris Mechanical Enterprises, Inc. v. United States, 728 F.2d 497, 498 (Fed.Cir.1984). Thus prevailing in an administrative proceeding does not provide the essential foundation for the recovery of attorney fees and expenses under the Equal Access to Justice Act. Cited by Levernier in its standard of review argument for the proposition that allowability of certain fees is an issue requiring the Claims Court to exercise its discretion, this court in Oliveira v. United States, 827 F.2d 735, 744 (Fed.Cir.1987), also stated on this issue: We interpret 28 U.S.C. § 2412 to mean that the trial court, in its discretion, may award only those reasonable and necessary expenses of an attorney incurred or paid in preparation for trial of the specific case before the court, which expenses are those customarily charged to the client where the case is tried.... In contrast, expenses of an attorney that are not incurred or expended solely or exclusively in connection with the case before the court, or which expenses the court finds to be unreasonable or unnecessary in the pending litigation, cannot be awarded under the EAJA. (footnote omitted) (emphasis added). The 1985 amendments to the EAJA, as alluded to in Keyava and United Constr., buttress this court’s position. Although the EAJA does not provide a comprehensive definition of the term “civil action,” section 2412(d)(2)(E) was amended to provide that “civil action brought by or against the United States” includes “an appeal by a party, other than the United States, from a decision of a contracting officer rendered pursuant to a disputes clause in a contract with the Government or pursuant to the Contract Disputes Act of 1978.” Also in 1985, § 2412(d)(1)(A) was amended to further define “civil action,” by adding the clarification “including proceedings for judicial review of agency action.” Both of these amendments to the EAJA show that, at its earliest, EAJA coverage may begin after the decision of and in pursuit of an appeal from" }, { "docid": "22447408", "title": "", "text": "acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), Where “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985) [opinion amended, 792 F.2d 762 (9th Cir.1985)]; Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant to be all-inclusive. City of Brunswick v. United States, 661 F.Supp. 1431, 1444-45 (S.D.Ga.1987) (emphasis in original), rev’d on other grounds, 849 F.2d 501 (11th Cir.1988). Although some circuits have read this provision more restrictively, they have done so largely without analysis or for reasons with which we disagree. See Wyandotte Savings Bank v. NLRB, 682 F.2d 119 (6th Cir.1982); Action on Smoking and Health v. C.A.B., 724 F.2d 211, 223-24 (D.C.Cir.1984); Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.1986). Wyandotte suggests that no litigation expenditure (other than attorney’s fees) is recoverable under the EAJA unless it is one of the costs enumerated in 28 U.S.C. § 1920. See 682 F.2d at 120. This approach reads key language out of the Act. Section 2412(d)(1)(A) provides that “fees” and other “expenses” are awarded “in addition to any costs awarded pursuant to subsection (a),” the subsection treating section 1920 costs. Action on Smoking, without analysis, holds that the EAJA does not authorize an award for expenses similar to those awarded in this case. 724 F.2d at 223-24. It relies instead on NAACP v. Donovan, 554 F.Supp. 715, 719 (D.C.Cir.1982). The NAACP opinion, however, reads the Act to authorize only those “expenses” listed in subsection 2412(d)(2)(A) or those of a like nature. We will not apply the rule of statutory construction known as ejusdem gen-eris in this case for the reasons given by Judge Alaimo in City of Brunswick. Weakley is unhelpful because it relies totally on" }, { "docid": "10927024", "title": "", "text": "the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term. For example, § 2412(d)(2)(G) [sic] provides that “ ‘court’ includes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), Where [sic] “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985) [opinion amended, 792 F.2d 762 (9th Cir.1985)]; Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant to be all-inclusive. City of Brunswick v. United States, 661 F.Supp. 1431, 1444-45 (S.D.Ga.1987) (emphasis in original), rev’d on other grounds, 849 F.2d 501 (11th Cir.1988). (First emphasis added.) Since the word “includes” is not a word of limitation, respondents’ second jurisdictional attack also fails. Accordingly, we hold that the United States Court of Military Appeals is “a court” for purposes of this Act. The second basis posited by respondents for dismissal of this application for fees and expenses is that such expenditures were not incurred in a “civil action” as required by EAJA. They note that the United States, as sovereign, is not liable for costs unless specific provisions for such liability is made by law. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 268 n. 42, 95 S.Ct. 1612, 1627 n. 42, 44 L.Ed.2d 141 (1975). Then they argue that EAJA creates such a waiver of liability only in certain “civil actions]” involving the" }, { "docid": "1148506", "title": "", "text": "803 F.2d 575, 580 (10th Cir.1986); Massachusetts Fair Share v. LEAA, 776 F.2d 1066, 1069-70 (D.C.Cir.1985). Other courts have held that the list of expenses in subsection (d)(2)(A) is not exclusive. See, e.g., Vaughn v. Heckler, 860 F.2d 295, 296 (8th Cir.1988) (awarding postage and photocopying expenses); Aston v. Secretary of HHS, 808 F.2d 9, 12 (2d Cir.1986) (awarding telephone, photocopying, travel, and postage expenses); International Woodworkers of America, AFL-CIO, Local 3-98 v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985) (awarding telephone, postage, and travel expenses); SEC v. Kaufman, 835 F.Supp. 157 (S.D.N.Y.1993) (awarding travel, typing services, postage, telephone, transportation, storage of records, and translation expenses); Holden v. Bowen, 668 F.Supp. 1042 (N.D.Ohio 1986) (awarding telephone, messenger service, postage, computer-assisted research, and travel expenses). Following the precedent of the Federal Circuit in Oliveira v. U.S., 827 F.2d 735, 744 (Fed.Cir.1987), that the specific expenses listed in section 2412(d)(2)(A) are not the only expenses that can be recovered, we held in Cook, 6 Vet.App. at 238, that “the definition of fees and other expenses”.... is inclusive rather than exclusive. The Oliveira case dealt with expenses incurred by an attorney, and the Federal Circuit stated: We interpret 28 U.S.C. § 2412 to mean that the trial court, in its discretion, may award only those reasonable and necessary expenses of an attorney incurred or paid in preparation for trial of the specific case before the court, which expenses are those customarily charged to the client where the case is tried. The quantum and method of proof of each allowable expense is discretionary with the trial court. In contrast, expenses of an attorney that are not incurred or expended solely or exclusively in connection with the case before the court, or which expenses the court finds to be unreasonable or unnecessary in the pending litigation, cannot be awarded under the EAJA. Oliveira, 827 F.2d at 744; see also Chiu v. U.S., 948 F.2d 711, 713 (Fed.Cir.1991) (determination of amount of EAJA award is discretionary with trial court). Here, this Court is operating, for EAJA purposes, as a trial court. In Cook, we concluded: “[T]he" }, { "docid": "963610", "title": "", "text": "(9th Cir.2006) (applying Huffman’s bifurcated inquiry in a case under the new version of the statute). We disagree with the taxpayers’ argument that the 1996 amendments somehow render Huffman’s reasoning inapplicable. Finally, we note that in another administrative law context, the Equal Access to Justice Act (“EAJA”) provides for attorneys’ fees awards when a government agency takes a position either before or during litigation that is not substantially justified. 28 U.S.C. § 2412. See, e.g., Thangaraja v. Gonzales, 428 F.3d 870, 873-74 (9th Cir.2005) (examining the Immigration and Naturalization’s position in agency proceedings as well as the immigration judge’s and Board of Immigration Appeals’ decisions in determining that attorneys’ fees were warranted under the EAJA); Lewis v. Barnhart, 281 F.3d 1081, 1083-84 (9th Cir.2002) (considering the finding of an administrative law judge before civil litigation commenced in determining whether the United States was substantially justified). The EAJA, first enacted in 1948, provides that “[ujnless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys ... to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action.” 28 U.S.C. § 2412(b). To recover, a party must demonstrate that the position of the United States is not substantially justified. Id. § 2412(d)(1)(A); § 2412(d)(1)(B). In 1985, Congress added language to the EAJA clarifying that “position of the United States” means “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” Pub.L. No. 99-80 § 2, 99 Stat. 183-(1985); see also id. § 2412(d)(2)(D). The EAJA also specifically excludes from its coverage any action that might be brought under 26 U.S.C. § 7430. 28 U.S.C. § 2412(e). Thus it is evident from the statutory language that Congress intended the fee-shifting inquiry under the tax statute to be different from the fee-shifting inquiry under the EAJA. The tax statute includes no" }, { "docid": "15608325", "title": "", "text": "For example, § 2412(d)(2)(G) provides that “ ‘court’ in- dudes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), where “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985); Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant to be all-inclusive. Such a reading resonates with the purposes of the EAJA in allowing prevailing parties in actions against the Government to be fully compensated for the costs of asserting their rights in cases where the Government’s position is not substantially justified. (C) Permissible Attorney Fees Defendant launches a three-pronged attack on the amount of fees charged by plaintiff’s counsel: (1) that Mr. Walbert’s rate of $125 per hour is in excess of the $75 per hour recommended by the statute, and that any other rate should be measured by the prevailing market rate in this District; (2) that counsel has billed an excessive number of hours for the amount of work represented by this case; and (3) that counsel’s rate of pay should be discounted according to the nature of the work performed. Regarding the proper rate for Walbert, the Court refers to § 2412(d)(2)(A) of the EAJA, which provides: (ii) attorney fees shall not be awarded in excess of $75.00 per hour unless the Court determines that an increase in the cost of living or a special factor such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. Under its authority pursuant to" }, { "docid": "22447407", "title": "", "text": "by the court to be necessary for the preparation of the party’s case, and reasonable attorney’s fees ...; 28 U.S.C. § 2412(d)(2)(A) (emphasis added). The government argues that these terms must be given a limited construction since the EAJA represents a waiver of the United States’ sovereign immunity. The problem with this interpretation is that “fees” and “expenses” are defined in the Act by example, rather than by limitation. In this regard, we agree with the following observations by Chief Judge Alaimo of the Southern District of Georgia: Turning ... to the structure of the definitions contained in the EAJA, it appears that where the drafters used the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term. For example, § 2412(d)(2)(G) provides that “ ‘court’ includes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), Where “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985) [opinion amended, 792 F.2d 762 (9th Cir.1985)]; Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant to be all-inclusive. City of Brunswick v. United States, 661 F.Supp. 1431, 1444-45 (S.D.Ga.1987) (emphasis in original), rev’d on other grounds, 849 F.2d 501 (11th Cir.1988). Although some circuits have read this provision more restrictively, they have done so largely without analysis or for reasons with which we disagree. See Wyandotte Savings Bank v. NLRB, 682 F.2d 119 (6th Cir.1982); Action on Smoking and Health v. C.A.B., 724 F.2d 211," }, { "docid": "10927023", "title": "", "text": "an Article III court, see 28 U.S.Code § 171, Amendments, at 82 (1982 ed.), and finally resolved in the United States Claims Court, an Article I court. Nevertheless, the above legislative report was issued on May 15,1985, at a time when the United States Claims Court had long been established as an Article I court, and subsection (d)(2)(F) had not yet been included in the EAJA. Moreover, the Eleventh Circuit rejected an argument similar to respondents’ in the recent decision of Jean v. Nelson, 863 F.2d 759, 777 (11th Cir.1988). It said, The government argues that these terms must be given a limited construction since the EAJA represents a waiver of the United States’ sovereign immunity. The problem with this interpretation is that “fees” and “expenses” are defined in the Act by example, rather than by limitation. In this regard, we agree with the following observations by Chief Judge Alaimo of the Southern District of Georgia: Turning ... to the structure of the definitions contained in the EAJA, it appears that where the drafters used the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term. For example, § 2412(d)(2)(G) [sic] provides that “ ‘court’ includes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), Where [sic] “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985) [opinion amended, 792 F.2d 762 (9th Cir.1985)]; Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant" }, { "docid": "15608324", "title": "", "text": "costs awarded pursuant to” § 1920. 28 U.S.C. § 2412(d)(1)(A). At the same time, those fees and expenses may be awarded only subject to the exceptions “otherwise provided by statute____” Id. Since the EAJA refers to prevailing market rates as a method for determining proper amounts of fees, the Court is dubious of the contention that the amounts awardable were meant to be governed by § 1821. 28 U.S.C. § 2412(d)(2)(A). To the extent that such fees include the reasonable expenses of expert witnesses, it is evident that Congress did not intend the restrictive amounts of § 1821 to apply. As for the claim that only expert fees of witnesses are permitted under the EAJA, the Court finds that the answer turns on whether the list of examples provided in § 2412(d)(2)(A) is exclusive or simply illustrative. Turning again to the structure of the definitions contained in the EAJA, it appears that where the drafters used the word “includes” they intended to provide a non-exhaustive list of examples to clarify the meaning of the term. For example, § 2412(d)(2)(G) provides that “ ‘court’ in- dudes the United States Claims Court,” (yet that section may not be interpreted to mean that this Court would not meet the statutory definition); likewise, in § 2412(d)(2)(C), “ ‘United States’ includes any agency and any official of the United States acting in his or her official capacity.” Where Congress intended a more exclusive definition, it used the word “means,” as in § 2412(d)(2)(B), where “party” means an individual with the appropriate net worth. Several circuits have construed “fees and other expenses” to encompass “costs that are ordinarily billed to a client.” International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985); Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.1986). The Court agrees with the conclusion of these cases that the list of expenses provided in § 2412(d)(2)(A) was not meant to be all-inclusive. Such a reading resonates with the purposes of the EAJA in allowing prevailing parties in actions against the Government to be fully compensated for" } ]

[ { "docid": "22697702", "title": "", "text": "were out of time on the reconsideration aspect, the federal defendants substituted a motion for modification of the September 29, 1971, injunction. On March 28, 1973, the district court denied the motion, and this appeal followed. General Requirements for a Preliminary Injunction A preliminary injunction may be issued to protect the plaintiff from irreparable injury and to preserve the district court’s power to render a meaningful decision after a trial on the merits. The grant or denial of a preliminary injunction rests in the discretion of the district court. Johnson v. Radford, 5 Cir. 1971, 449 F.2d 115. The district court does not exercise unbridled discretion, however. It must exercise that discretion in light of what we have termed “the four prerequisites for the extraordinary relief of preliminary injunction.” Allison v. Froehlke, 5 Cir. 1972, 470 F.2d 1123, 1126. The four prerequisites are as follows: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest. Di Giorgio v. Causey, 5 Cir. 1973, 488 F.2d 527; Blackshear Residents Organization v. Romney, 5 Cir. 1973, 472 F.2d 1197. In considering these four prerequisites, the court must remember that a preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion. The primary justification for applying this remedy is to preserve the court’s ability to render a meaningful decision on the merits. Although the fundamental fairness of preventing irremediable harm to a party is an important factor on a preliminary injunction application, the most compelling reason in favor of [granting a preliminary injunction] is the need to prevent the judicial process from being rendered futile by defendant’s action or refusal to act. Wright & Miller, Federal Practice and Procedure: Civil § 2947. Thus only those injuries that cannot be redressed by the application of a" } ]

[ { "docid": "8130839", "title": "", "text": "the basis of erroneous legal principles is reviewed de novo as is any other conclusion of law. FTC v. Southwest Sunsites, Inc., 665 F.2d 711, 717 (5th Cir.), cert. denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d 846 (1982). We find an abuse of discretion in the district court’s decision to deny the temporary injunction based upon its ruling on the underlying merits of the case. The lower court also improperly applied Mississippi law in considering H & W’s breach of contract claim. We must therefore reverse the district court’s denial of a preliminary injunction and remand for further consideration of H & W’s request for injunctive relief. A. Analytical Prerequisites This Court has set out a four-pronged analysis for the adjudication of a preliminary injunction request. The movant has the burden of proving that: (1) there is a substantial likelihood of success on the merits; (2) there is a substantial threat that the movant will suffer irreparable injury if the injunction is not issued; (3) the threatened injury to the movant outweighs any damage the injunction might cause to the opponent; and (4) the injunction will not disserve the public interest. Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984); Dallas Cowboy Cheerleaders v. Scoreboard Posters, Inc., 600 F.2d 1184, 1187 (5th Cir.1979). A grant or denial of a preliminary injunction “must be the product of a reasoned application of the four factors held to be necessary prerequisites.” Florida Medical Association, Inc. v. U.S. Dept. of Health, Education, and Welfare, 601 F.2d 199, 202 (5th Cir.1979). Although the district court briefly noted the four elements of a preliminary injunction inquiry, its ruling was based solely on the underlying merits of H & W’s breach of contract and attempted monopolization claims. In short, the court denied the injunction because it determined that H & W failed to prove its case in full at the preliminary injunction hearing. The court’s decision ignored the Supreme Court’s instruction that a party “is not required to prove his case in full at a preliminary injunction hearing.” University of Texas v." }, { "docid": "13259594", "title": "", "text": "West-point code, both old and new versions. Walton agreed with plaintiffs expert that certain lines of code are identical, but she disagreed with his conclusion. Walton explained that “[tjhere is lots of identical code in here. But there has got to be in order for them to do what they are doing.” She also disagreed with Stutzbach’s observation that programmers are highly individualistic in writing code. CONCLUSIONS OF LAW To obtain a preliminary injunction pursuant to Rule 65, Fed.R.Civ.P., and Rule 4.06, Local Rules, M.D. Fla., the moving party must prove: (1) a substantial likelihood that it will ultimately prevail on the merits; (2) a showing that it will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to it outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. Cunningham v. Adams, 808 F.2d 815, 818-19 (11th Cir.1987) (citation omitted). Maintenance of the status quo is the main purpose of preliminary-injunctive relief. Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.1983) (citation omitted). The Rule 65 standard applies to claims of injunctive relief under state law claims. Ferrero v. Assoc. Materials, Inc., 923 F.2d 1441, 1448 (11th Cir.1991). “The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant ‘clearly carries the burden of persuasion’ as to the four prerequisites.” Cunningham, 808 F.2d at 819 (citation omitted). Plaintiffs amended complaint includes claims against Westpoint, Modern Insurance Company, Vincent, and Jerger for copyright infringement and misappropriation of trade secrets, among other claims. (Dkt.31.) The complaint also alleges breach of the common law duty of loyalty and breach of contract against Vincent and Jerger. (Dkt.31.) Plaintiff seeks injunctive relief as to four claims: misappropriation of trade secrets, breach of confidentiality agreements, breach of the duty of loyalty, and copyright infringement as to the rating engine and the HTML Generator source code. (Dkt. 67 at 9-10.) I. Substantial Likelihood of Success on the Merits Plaintiff must first show a substantial likelihood that it will ultimately" }, { "docid": "1720394", "title": "", "text": "of the hand. An inmate who is right-handed instead of left-handed has no restraint on that hand and vice-versa. Both hands are freed when necessary for an inmate to use a typewriter. Tubwell filed suit when pursuant to his change in security classification, he was placed in physical restraints when attending the main penitentiary law library. These restraints, he argues, obstruct his access to the library, hinder his ability to pursue litigation, and thereby deny him access to the courts. After Tubwell moved for a preliminary injunction, the magistrate, pursuant to 28 U.S.C. § 636(b)(1)(B), held a hearing and entered oral findings and conclusions which recommended denial of relief on the grounds that (1) Tubwell failed to show a substantial likelihood of prevailing on the merits; (2) that a threat of irreparable harm to the defendants existed; and (3) injunctive relief could dis-serve the public interest in adequate security at Parchman’s library. The district court adopted the magistrate’s recommendation and denied the motion for preliminary injunction. To obtain a preliminary injunction, the movant has the burden of establishing four factors: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the movant outweighs the threatened harm the injunction might cause the opposing party; and (4) that the grant of the injunction will not disserve the public interest. Roberts v. Austin, 632 F.2d 1202, 1207 (5th Cir.1980), Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). The district court’s denial of an application for preliminary injunction will be upheld unless an abuse of discretion is shown. Interox v. PPG Industries, Inc., 736 F.2d 194, 198 (5th Cir.1984), Foley v. Alabama State Bar, 648 F.2d 355, 358 (5th Cir.1981), Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984), Foley, 648 F.2d at 358. Our review of the record convinces us that the district court acted well within its discretion by denying Tubwell’s application for preliminary injunction. It is well-established that access to the courts" }, { "docid": "23183355", "title": "", "text": "GEE, Circuit Judge: On this appeal we review a preliminary injunction and various other orders entered by the district court in connection with an attempt by Appellant Smith International, Inc. (Smith) to acquire control of Appellee Gearhart Industries, Inc. (Gearhart), another company operating in the general area of oil field service. A cross-appeal by Gearhart complains of the court’s refusal to sterilize voting rights in a large block of Gearhart shares purchased by Smith early in the takeover attempt from General Electric Venture Capital Corporation. The movant must prove four prerequisites to secure a preliminary injunction: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is not issued; (3) that threatened injury to the movant outweighs any damage the injunction might cause to the opponent; and (4) that the injunction will not disserve the public interest. Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). The grant or denial of a preliminary injunction by the district judge may be reversed on appeal only by a showing of abuse of discretion. Id. The four elements for preliminary injunctive relief are mixed questions of fact and law. Id. The district court’s findings of fact must be upheld unless they are clearly erroneous. Id. Its conclusions of law, however, are subject to broad review and will be reversed if incorrect. Id.; see also Houston Agricultural Credit Corp. v. United States, 736 F.2d 233 at 235 (5th Cir.1984). Whether we might have done as the trial court did is thus of no consequence; the question for us is whether the trial court exceeded the broad limits within which its power could properly be exercised, and we conclude that in some respects it did. The situation in which the parties and the trial court are placed demands of us speed rather than art, nor — as we note above— need we engage in the sort of plenary review that an appeal of permanent relief would require. Henry v. First Nat’l Bank, 595 F.2d 291, 302 (5th Cir.1979). Hence," }, { "docid": "22270583", "title": "", "text": "an injunction against future violations of the pricing provisions in the contract. II. The criteria for determining whether a preliminary injunction will be granted are set out in Canal Authority of State of Florida v. Callaway, 489 F.2d 567 (5th Cir.1974). Callaway established that the following requirements must be shown before a party will be entitled to preliminary injunctive relief: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that irreparable injury will result if the injunction is not granted, (3) that the threatened injury outweighs the threatened harm to defendant, and (4) that granting the preliminary injunction will not disserve the public interest. Id. at 572, The decision to grant or deny a preliminary injunction is discretionary with the district court. The standard we must apply in reviewing a grant of preliminary injunction, therefore, is whether the district court’s decision constitutes an abuse of discretion. See Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975); Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984); City of Meridian, Miss. v. Algernon Blair, Inc., 721 F.2d 525, 527 (5th Cir.1983). A preliminary injunction is an extraordinary remedy. It should only be granted if the movant has clearly carried the burden of persuasion on all four Calla-way prerequisites. The decision to grant a preliminary injunction is to be treated as the exception rather than the rule. State of Texas v. Seatrain International, S.A., 518 F.2d 175, 179 (5th Cir.1975); Callaway, 489 F.2d at 576. We find that the district court was correct in holding that the Mississippi Power & Light satisfied its burden of meeting all four prerequisites to the preliminary injunction. We affirm. Likelihood of Success. We first consider the court’s finding of a substantial likelihood that MP&L will prevail on the merits of this case. To evaluate the plaintiff’s likelihood of success we determine what is the proper standard to be applied in evaluating plaintiff’s claims, and then we apply that standard to the facts presented in the record. Deerfield Medical Center v." }, { "docid": "2903640", "title": "", "text": "harm once it found that Wy-Cal had copied the quad maps. Finally, Kern River contends that the district court erred in finding fair use. III Spirited competition among several pipeline companies to serve the burgeoning demand for natural gas among heavy oil producers conducting enhanced recovery in southern California drives the controversies between these pipelines. Their real battle is over which of them will serve this market. The merits of whether the Commission properly granted Wy-Cal its Optional Expedited Certificate, and whether the Commission should have consolidated the applications of Wy-Cal, Kern River, and Mojave and required them to go head-to-head for the right of one to serve, have been decided by the United States Court of Appeals for the District of Columbia Circuit. The court affirmed the Commission’s decision in all respects. Public Utilities Comm’n, supra. This copyright claim is no more than a harassing skirmish by Kern River against Wy-Cal in the larger fight for domination of this southern California market. We express no opinion as to any issue that has been decided by or may later be presented to our sister circuit in that litigation. The law controlling the issues raised here is well settled. A preliminary injunction may be granted under section 502 of the Copyright Act if the plaintiff establishes each of the following four factors: (1) a substantial likelihood that the plaintiff will succeed on the merits; (2) a substantial threat that the denial of the injunction will result in irreparable harm to the plaintiff; (3) the threatened injury to the plaintiff outweighs any damage that the injunction may cause to opposing parties; and (4) the injunction will not disserve the public interest. Allied Mktg. Group, Inc. v. CD Mktg Inc., 878 F.2d 806, 809 (5th Cir.1989); Apple Barrel Prod., Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). The preliminary injunction is an extraordinary remedy and will be granted only if the movant has clearly carried the burden as to all four of the elements. Allied Mktg., 878 F.2d at 809; Apple Barrel, 730 F.2d at 389. The decision to grant an injunction" }, { "docid": "22270621", "title": "", "text": "must be pursuant to a Federal Energy Regulatory Commission (\"FERC”) certificate of public convenience and necessity and that no portion of such service may be abandoned without prior FERC approval. 15 U.S.C. §§ 717f(b) & (c). See Federal Power Comm’n v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972). However, there is no claim of abandonment or threatened abandonment here. . See United Gas Pipe Line Co. v. Mississippi Pub. Serv. Comm’n, 241 Miss. 762, 133 So.2d 521 (1961); Texas Gas Transmission Corp. v. Mississippi Pub. Serv. Comm’n, 241 Miss. 826, 133 So.2d 526 (1961). . See Laws 1977, ch. 455; Miss.Code Ann. § 77-11-301 et seq. . The other three prerequisites are: \"(1) [A] substantial likelihood that plaintiff will prevail on the merits, (2) [above quoted], (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest.\" 489 F.2d at 572. This formulation has been repeated almost innumerable times by this Court. Relatively recent cases include Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984), and City of Meridian, Miss. v. Algernon Blair, Inc., 721 F.2d 525, 527 (5th Cir.1983). That the moving party has the burden of proof on each of these \"prerequisites\" has likewise been frequently reiterated. See, e.g., Apple Barrel Prods., Inc., 730 F.2d at 389; Commonwealth Life Ins. Co. v. Neal, 669 F.2d 300, 303 (5th Cir.1982). . See, e.g., Apple Barrel Prods., Inc., 730 F.2d at 389 (\"In order to obtain preliminary injunctive relief, the movant must carry the burden of persuasion on each of the elements of the four prong test.”); Southern Monorail Co. v. Robbins & Myers, Inc., 666 F.2d 185, 186 (5th Cir.1982) (\"A preliminary injunction may not issue unless the movant carries the burden of persuasion as to all four prerequisites.”); Spiegel v. City of Houston, 636 F.2d 997, 1001 (5th Cir.1981) (\"In order to prevail plaintiff must carry the burden on all four elements.”); Vision Center v. Opticks, Inc., 596" }, { "docid": "1258704", "title": "", "text": "were given ten days to file written comments on and objections to the magistrate’s recommended findings and conclusions. All parties have done so. Upon consideration of the evidence presented before the magistrate, his findings and recommendations, and the objections posed by the parties, the Court finds that Ohio is not entitled to an injunction prohibiting. Sealy from closing its purchase of Portland. Rather, the Court adopts the magistrate’s alternative recommendation, that the sale of Portland to Sealy be permitted to go forth on January 31, 1980, subject to a hold-separate order. I. The Standards For Preliminary Injunctive Relief A preliminary injunction is a vehicle by which the conduct of a party may be prohibited prior to any conclusive determination on the merits that the conduct in question is in fact illegal or inappropriate. For this reason, the case law has recognized that a preliminary injunction is an extraordinary remedy “not to be indulged in except in a case clearly warranting it.” Fox Val ley Harvestore, Inc. v. A. O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir. 1976). It is within the discretion of the Court to grant a motion for preliminary injunctive relief when the moving party satisfies its burden of persuasion as to each of the following prerequisites: (1) an inadequate remedy at law and irreparable harm in the absence of an injunction; (2) the threat of harm to the movant outweighs the harm that would result to the opposing party if an injunction issues; (3) at least a reasonable likelihood that the moving party will prevail on the merits; and (4) the public interest will not be disserved by the granting of injunctive relief. Fox Valley, 545 F.2d at 1097; see also Citizens Energy Coalition of Indiana v. Sendak, 594 F.2d 1158, 1162-1163.(7th Cir. 1979); Local Division 519, Amalgamated Transit Union, AFL-CIO v. LaCross Municipal Transit Authority, 585 F.2d 1340, 1351 (7th Cir. 1978). A. Irreparable Harm and Inadequacy of Legal Remedies It is beyond dispute that “[t]he basis for injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal" }, { "docid": "13259531", "title": "", "text": "followed in recommending to grant or deny the motion for preliminary injunction; (2) the law that the magistrate judge followed which forms the basis of the cause of action; and (3) the magistrate judge’s findings in light of Plaintiffs’ and Defendants’ objections. A. Standard of Review Under the Federal Magistrate’s Act, Congress vested Article III judges with the power to authorize a United States Magistrate Judge to conduct evi- dentiary hearings. 28 U.S.C. § 636. A district court judge may designate a United States Magistrate Judge to conduct hearings, including evidentiary hearings, in order to submit proposed findings of fact and recommendations (R & R) for the disposition of motions for injunctive relief. Id. § 636(b)(1)(B). Within ten days after being served with a copy of the R & R, any party may file written objections to the proposed findings and recommendations. Id. When a timely objection is made, the determination is subject to a de novo review by the district court. However, the district court will review those portions of the R & R that are not objected under a clearly erroneous standard. Gropp v. United Airlines, Inc., 817 F.Supp. 1558 (M.D.Fla.1993); see Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (holding that the de novo standard of review applies to both a factual and legal conclusions to which a party objects). B. Preliminary Injunction In determining whether a preliminary injunction should be granted, the Court must look at four factors: 1) whether a substantial likelihood exists that the movant will ultimately prevail on the merits; 2) whether the movant will suffer irreparable injury if the injunction is not issued; 3) whether the threatened injury to the movant outweighs the potential harm to the opposing party; and 4) whether the injunction, if issued, would be adverse to the public interest. Chase Manhattan Bank v. Dime Savings Bank of New York, 961 F.Supp. 275, 276 (M.D.Fla.1997) (quoting Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1561 (11th Cir.1989)). The plaintiff has the burden of persuasion as to each of these four factors. Failure" }, { "docid": "18597926", "title": "", "text": "movant has the burden of proving four elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury to the movant outweights any damage the injunction might cause to the opponent; and (4) that the injunction will not disserve the public interest. Enterprise International, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 471 (5th Cir.1985). These four elements are mixed questions of fact and law. Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). In reviewing the findings of fact made by the district court, we will uphold those findings unless they are clearly erroneous. Id. In contrast, the court’s conclusions of law “are subject to broad review and will be reversed if incorrect.” Commonwealth Life Insurance Co. v. Neal, 669 F.2d 300, 304 (5th Cir. 1982). After reviewing findings of fact and conclusions of law, however, we note that ultimately a “district court’s decision to grant or deny a preliminary injunction lies within its discretion.” Enterprise International, 762 F.2d at 472; Apple Barrel Productions, 730 F.2d at 386. Thus, we are bound to affirm the judgment of the district court absent an abuse of discretion. In denying the motion for a preliminary injunction, the district court concluded that appellant had failed to satisfy two of the four prerequisites for injunctive relief: a showing of irreparable harm and a showing of a substantial likelihood of success on the merits. Appellant contends that the district court abused its discretion (1) by using the wrong legal standard in analyzing the copyright infringement claim, and (2) by not addressing the misappropriation of trade secrets claim. III. Appellant argues that the district court applied the wrong legal standard in determining that appellant had not demonstrated a sufficient likelihood of success on the merits of its copyright infringement claim. Copyright infringement is shown by proof that the injured party owned copyrighted material and that the infringer copied that material. Miller v. Universal City Studios, 650 F.2d 1365, 1375 (5th Cir.1981). Copyright ownership, in turn," }, { "docid": "18597925", "title": "", "text": "the cotton industry and expertise in computer programming and design gained over a number of years.” The exception is appellee Fisher’s admission that he did copy one Telcot subroutine in programming GEMS. When Goodpasture discovered the copying on February 7', 1986, the subroutine was replaced, and Fisher was discharged. On January 15, 1986, Plains filed suit against Goodpasture and its employees Cushman, Fisher, Godlove, and Smith, seeking damages and injunctive relief for misappropriation of trade secrets, unfair competition, conversion, breach of confidential relationship, and trade dress infringement. After registering its copyright in the Telcot computer programs and associated manuals, Plains amended its complaint to include claims for copyright infringement. Plains made a motion for a preliminary injunction based on its copyright and trade secret claims, and a hearing was held on February 7 and 10, 1986. Both sides presented expert testimony on the issue of whether GEMS was copied from Telcot. On February 17, the district court denied the motion, and Plains subsequently instituted this appeal. II. In order to secure a preliminary injunction, the movant has the burden of proving four elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury to the movant outweights any damage the injunction might cause to the opponent; and (4) that the injunction will not disserve the public interest. Enterprise International, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 471 (5th Cir.1985). These four elements are mixed questions of fact and law. Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). In reviewing the findings of fact made by the district court, we will uphold those findings unless they are clearly erroneous. Id. In contrast, the court’s conclusions of law “are subject to broad review and will be reversed if incorrect.” Commonwealth Life Insurance Co. v. Neal, 669 F.2d 300, 304 (5th Cir. 1982). After reviewing findings of fact and conclusions of law, however, we note that ultimately a “district court’s decision to grant or deny a preliminary injunction lies within" }, { "docid": "2903641", "title": "", "text": "by or may later be presented to our sister circuit in that litigation. The law controlling the issues raised here is well settled. A preliminary injunction may be granted under section 502 of the Copyright Act if the plaintiff establishes each of the following four factors: (1) a substantial likelihood that the plaintiff will succeed on the merits; (2) a substantial threat that the denial of the injunction will result in irreparable harm to the plaintiff; (3) the threatened injury to the plaintiff outweighs any damage that the injunction may cause to opposing parties; and (4) the injunction will not disserve the public interest. Allied Mktg. Group, Inc. v. CD Mktg Inc., 878 F.2d 806, 809 (5th Cir.1989); Apple Barrel Prod., Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). The preliminary injunction is an extraordinary remedy and will be granted only if the movant has clearly carried the burden as to all four of the elements. Allied Mktg., 878 F.2d at 809; Apple Barrel, 730 F.2d at 389. The decision to grant an injunction is within the sound discretion of the trial court. We may reverse only if the trial court has abused its discretion. Allied Marketing, 878 F.2d at 809. The district court’s determinations as to each of the elements required for a preliminary injunction are mixed questions of fact and law, the facts of which we leave undisturbed unless clearly erroneous. Apple Barrel, 730 F.2d at 386. The conclusions of law are subject to broad, de novo review. Id. The first issue for our consideration is whether Kern River will likely succeed on the merits. To state a prima facie case of copyright infringement, the plaintiff must prove ownership of copyrighted material and copying of that material by the defendant. Allied Marketing, 878 F.2d at 810; Apple Barrel, 730 F.2d at 387. “Ownership” is proved by establishing originality and copyrightability of the matter and compliance with statutory formalities. Id. at 810-11; Apple Barrel, 730 F.2d at 387. “Copying” may be shown by establishing that the defendant had access to the copyrighted material and that the defendant’s work" }, { "docid": "11024893", "title": "", "text": "ORDER REGARDING REPORT AND RECOMMENDATION ' KOVACHEVICH, District Judge. THIS CAUSE is before the Court on a report and recommendation issued by Magistrate/Judge Charles R. Wilson on June 19, 1992. This Court specifically referred the Plaintiffs’ motion for preliminary injunction to the assigned magistrate/judge. After conducting an evidentiary hearing, the Magistrate/Judge recommended that the motion for preliminary injunction be granted in part and otherwise denied. Plaintiffs and Defendants (“the County”) filed written objections to the report and recommendation on July 2, 1992 and June 30, 1992 respectively. FACTS Plaintiffs concur in all factual findings. The County also concurs in the factual findings, except to inform the Court that the ordinance referenced in paragraph 10(d) of the findings of facts was amended, effective March 1992. The Court will address the effect of this amendment below. With the exception of the amendment pertaining to paragraph 10(b), this Court adopts the findings of facts contained in paragraphs 1-14 of the report and recommendation and incorporates them by reference. STANDARD OF REVIEW Pursuant to Rule 6.02, Rules of the United States District Court for the Middle District of Florida, the parties had ten (10) days after service to file written objections to the proposed findings and recommendations, or be barred from attacking the factual findings on appeal. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982) (en banc). After objection, the findings of the Magistrate/Judge are entitled to be adopted unless they are found to be clearly erroneous. DISCUSSION The Magistrate/Judge properly stated that Plaintiffs must prove the following four elements, as delineated in Canal Auth. of Fla. v. Callaway, 489 F.2d 567 (5th Cir.1974) to prevail on their motion for preliminary injunction: a) a substantial likelihood that plaintiffs will prevail on the merits of the claim; b) irreparable injury unless an injunction is entered; c) the threatened injury to plaintiffs outweighs the threatened harm that an injunction may cause to the County; and d) the granting of a preliminary injunction will not be adverse to public interest. In determining whether Plaintiffs have a substantial likelihood of prevailing on the merits, the report analyzed four" }, { "docid": "21081707", "title": "", "text": "In addition, the Pesce Group contends that the district court abused its discretion in setting the amount of the preliminary injunction bond. The grant or denial of a preliminary injunction is a decision within the discretion of the district court. See United States v. Lambert, 695 F.2d 536, 539 (11th Cir.1983). For preliminary injunctive relief to be warranted, the district court must find that the movant has satisfied four prerequisites: (1) a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant is greater than any damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, will not disserve the public interest. See Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir.1993). The review of a district court’s decision to grant or deny a preliminary injunction is extremely narrow in scope. See Revette v. International Ass’n of Bridge, Structural and Ornamental Iron Workers, 740 F.2d 892, 893 (11th Cir.1984). This court will reverse the district court’s decision only if there is a clear abuse of discretion. See Id. Furthermore, “ ‘[n]o attention is paid to the merits of the controversy beyond that necessary to determine the presence or absence of an abuse of discretion.’ ” Cafe 207, Inc., 989 F.2d at 1137 (quoting Di Giorgio v. Causey, 488 F.2d 527, 529 (5th Cir.1973)). The district court found that Carillon met its burden of establishing the elements necessary for a preliminary injunction to be granted. Our review of the record leads us to conclude that the court did not abuse its discretion in making this decision. Following the district court’s order granting the preliminary injunction, Carillon moved for an order to post bond pursuant to Rule 65(c) and 65.1, Federal Rules of Civil Procedure. The district court ordered Carillon to post bond in the amount of $50,000. The amount of an injunction bond is within the sound discretion of the district court. See Corrigan Dispatch Co. v. Casa Guzman, 569 F.2d 300, 303 (5th Cir.1978). The Pesee Group" }, { "docid": "22218468", "title": "", "text": "621 (5th Cir.1985). To obtain a preliminary injunction, the moving party must establish four factors: (1) a substantial likelihood of success on the merits, (2) a substantial threat that failure to grant the injunction will result in irreparable injury, (3) the threatened injury outweighs any damage that the injunction may cause the opposing party, and (4) the injunction will not disserve the public interest. Allied Marketing Group, Inc. v. CDL Marketing, Inc., 878 F.2d 806, 809 (5th Cir.1989). The decision to grant or deny a preliminary injunction lies within the discretion of the district court. Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). Accordingly, an order granting or denying a preliminary injunction will be reversed only upon a showing that the district court abused its discretion. White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir.1989). The district court’s findings of fact are subject to the clearly erroneous standard of review. Fed.R.Civ.P. 52(a). Any legal determinations are subject to plenary review on appeal. Griffin v. Box, 910 F.2d 255, 259 (5th Cir.1990). The district court in the instant case properly applied the four factor test for determining whether a preliminary injunction is justified. Taylor argues that the district court erred in reaching its conclusions on each of the four factors. We will discuss each factor in turn. 1. Substantial Likelihood of Success Lakedreams’ complaint alleges a number of causes of action. The district court found that Lakedreams had shown a substantial likelihood that it would succeed on the merits of two of its claims: copyright infringement and misappropriation of ideas. Since this Court concludes that Lak-edreams has shown a substantial likelihood that it would succeed on the copyright infringement claim, we need not address the merits of the misappropriation claim. A copyright infringement action requires that the plaintiff show “ownership” of the material and “copying” by the defendant. Apple Barrel Productions, 730 F.2d at 387. To establish “ownership,” the plaintiff must prove that the material is original, that it can be copyrighted, and that he has complied with statutory formalities. Id. To establish “copying,” the plaintiff generally" }, { "docid": "8484228", "title": "", "text": "of Mississippi taken pursuant to the Mississippi Constitution of 1890, as any such activity would violate the Voting Rights Act of 1870; 4. enjoin the Mississippi Congressional Delegation from representing the State of Mississippi in the United States Congress until Mississippi is in compliance with the Voting Rights Act of 1870; .and, 5. enjoin the March 30, 1993, special election in the Second Congressional District of Mississippi, United States House of Representatives. . Of course, plaintiff's section 2 claim will not be addressed by this three-judge court. That claim remains pending before the assigned district court judge, the Honorable Glen H. Davidson. . Canal Authority is the seminal case in this Circuit which defines the requirements for issuance of the extraordinary relief of a preliminary injunction as follows: (1) a substantial likelihood that plaintiff will prevail on the merits; (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and; (4) that granting the preliminary injunction will not disserve the public interest. Canal Authority, 489 F.2d at 572. See also Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985); Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984); City of Meridian, Miss. v. Algernon Blair, Inc., 721 F.2d 525, 527 (5th Cir.1983). . For example, on or about May 13, 1993, plaintiff filed his third motion for injunctive relief. Additionally, there is a pending motion to transfer plaintiff's cause to the Southern District of Mississippi. . See Chisom v. Roemer, 501 U.S.-, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). . Section 1973 sets forth the purposes of the Voting Rights Act of 1965, as amended: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or" }, { "docid": "12129918", "title": "", "text": "Hay alleges that the magistrate should have applied a “least restrictive means” test or should have imposed a “probable cause” standard in balancing the state’s security need for the Strip Search Policy against inmates’ privacy rights. Second, Hay challenges the magistrate’s denial of injunctive relief (i) without a hearing on the issue of discriminatory enforcement of prison policies and (ii) without securing the testimony of Hay’s requested witnesses. Finally, Hay asserts that the district court failed to make a de novo review of the magistrate’s findings as is required under 28 U.S.C. § 636(b)(1). We review seriatim the points raised by Hay, with our inquiry focusing first on whether the magistrate applied the law correctly in denying injunctive relief with respect to the Strip Search Policy itself. The law is well-settled that the grant or denial of injunctive relief rests in the sound discretion of the trial court. We will not overturn the decision of the trial court absent an abuse of discretion. Lindsay v. City of San Antonio, 821 F.2d 1103, 1107 (5th Cir.1987); United States v. LULAC, 793 F.2d 636, 642 (5th Cir.1986); Lubbock Civil Liberties Union v. Lubbock Indep. School Dist., 669 F.2d 1038, 1049 (5th Cir. 1982), cert. denied, 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003 (1983). Of course, we will review the magistrate’s discretionary rulings in light of the four prerequisites that a plaintiff must show to obtain preliminary injunctive relief: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) an evaluation that the threatened injury to the plaintiff outweighs the threatened injury the injunction may cause the defendant; and (4) a determination that the injunction does not disserve public interest. Lindsay, 821 F.2d at 1107; LULAC, 793 F.2d at 642. These four prerequisites to injunctive relief are mixed questions of law and fact; we must uphold subsidiary factual findings unless clearly erroneous, but conclusions of law and the ultimate application of the law to the facts are freely reviewable. LULAC, 793 F.2d at 642. Moreover, we add the" }, { "docid": "23437261", "title": "", "text": "injunction, the moving party bears the burden of proving the following: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is not issued; (3) that threatened injury to the movant outweighs any damage the injunction might cause to the opponent; and (4) that the injunction will not disserve the public interest. Gearhart Indus., Inc. v. Smith Int’l, Inc., 741 F.2d 707, 710 (5th Cir.1984). Each of these elements is a mixed question of fact and law. Apple Barrel Prod., Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). We review the district court’s findings of fact under a clearly erroneous standard and its conclusions of law de novo. Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir.1985). The ultimate issue, however, is whether the district court abused its discretion in granting the preliminary injunction. Plains Cotton Coop. Ass’n v. Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1259 (5th Cir.1987). On appeal, Cosmair challenges two of the requirements for a preliminary injunction as not being met. It contends that the EEOC did not demonstrate a substantial likelihood of success on the merits and did not prove irreparable injury. In addition, Cosmair contests the scope of the injunction. The company maintains that the district court erred in issuing a company-wide injunction and in enjoining Cosmair from requiring employees to sign releases to receive severance benefits. We will address these contentions in turn. III. Likelihood of Success on the Merits The district court found the EEOC likely to succeed on the merits because Cosmair violated the prohibition on retaliation contained in section 4(d) of the ADEA when it halted severance payments in response to Terry’s filing a charge. Section 4(d) makes it “unlawful for an employer to discriminate against any of his employees ... because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this [Act].” 29 U.S.C. § 623(d). This provision is derived from a similar one in title VII of" }, { "docid": "12064538", "title": "", "text": "(5th Cir.1986) (bankruptcy venue provisions may be waived). The magistrate found that DCRC had already violated the clause and, based on the representations of counsel, that the other defendants were ready to violate it. Seattle-First demonstrated a substantial likelihood of success on the merits. Seattle-First has also met the three other elements necessary for a preliminary injunction. As the defendants either were or were about to become involved in bankruptcy proceedings, Seattle-First had little realistic chance of obtaining damages for the breach of the stipulation. It had no adequate remedy at law and thus established the existence of a substantial threat of irreparable harm. Moreover, granting the injunction would not have caused the defendants harm. As the magistrate observed, the injunction would simply force them to do what they had already agreed to do. Finally, forcing the Manges defendants to litigate in the Western District of Texas rather than in the Southern does not disserve the public; indeed, unlike, for example, a public nuisance case, no aspect of this litigation could effect interests other than those of the parties. Seattle-First made a sufficient showing for the district court to grant a preliminary injunction. The Manges defendants also complain that the district court’s orders did not comport with the requirements of Federal Rule of Civil Procedure 65(d). We agree. Rule 65(d) requires that the order itself shall [1] “set forth the reasons for its issuance; [2] shall be specific in terms; [3] shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be re strained.” Fed.R.Civ.P. 65(d). The September 21, 1989 order adopted the magistrate’s findings and recommendation and without further elaboration granted the preliminary injunction and ordered that the TRO remain in effect. The order fails to state the reasons for its issuance, is not specific in its terms and refers to the magistrate’s report and the TRO. “[The] no-reference requirement [of Rule 65(d) ] has been strictly construed in this circuit,” Fed. Trade Comm’n v. Southwest Sunsites, Inc., 665 F.2d 711, 723 (5th Cir.1982), to require that the" }, { "docid": "23437260", "title": "", "text": "benefits. Terry then filed a second charge with the EEOC contending that Cosmair had unlawfully retaliated against him for filing a charge by discontinuing his benefits. After investigating the retaliation charge and unsuccessfully attempting conciliation, the EEOC determined reasonable cause existed to believe that Cosmair had unlawfully retaliated against Terry for filing an age discrimination charge. The Commission then moved for a preliminary injunction barring Cosmair from refusing to pay severance benefits to Terry, from seeking releases from other employees, and from retaliating against other employees who file age discrimination charges or participate in EEOC investigations. The magistrate recommended denying the EEOC’s motion. He concluded that in the absence of case authority establishing the illegality of Cosmair’s conduct the EEOC had not proven a substantial likelihood of success on the merits. The district court, not accepting the magistrate’s recommendation, granted the motion for preliminary injunction. The court held that Cosmair’s conduct was retaliation arising out of the employment relationship and thus was unlawful. Cosmair appeals. II. Requirements for a Preliminary Injunction To obtain a preliminary injunction, the moving party bears the burden of proving the following: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is not issued; (3) that threatened injury to the movant outweighs any damage the injunction might cause to the opponent; and (4) that the injunction will not disserve the public interest. Gearhart Indus., Inc. v. Smith Int’l, Inc., 741 F.2d 707, 710 (5th Cir.1984). Each of these elements is a mixed question of fact and law. Apple Barrel Prod., Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984). We review the district court’s findings of fact under a clearly erroneous standard and its conclusions of law de novo. Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir.1985). The ultimate issue, however, is whether the district court abused its discretion in granting the preliminary injunction. Plains Cotton Coop. Ass’n v. Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1259 (5th Cir.1987). On appeal, Cosmair challenges two of the" } ]

[ { "docid": "5913962", "title": "", "text": "held in Heit v. Weitzen, 402 F.2d 909, 913 (2d Cir.1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1740, 23 L.Ed.2d 217 (1969), even before the Supreme Court’s expansive interpretation of the “in connection with” requirement was made clear, “[i]t is reasonable to assume that investors may very well rely on the material contained in false corporate financial statements which have been disseminated in the market place, and in so relying may subsequently purchase securities of the corporation.” The district court’s error, and the appel-lees’ untenable position on this appeal, are highlighted by a consideration of Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), in which the Supreme Court held that reliance could be presumed where the fraud-on-the-market concept applied. In Basic Inc., the defendants, in response to stock market movements, said there were no ongoing merger discussions or known corporate developments, and the plaintiffs, common stock holders, sold their stock after these denials; in fact, the company had been approached as to a merger, and indeed the merger took place after the plaintiffs’ sales. The statements neither had any specific audience nor were related to any specific security, but were held, on the basis of a fact-specific inquiry, to be material and to permit the application of a rebuttable presumption of reliance, supported in part by the fraud-on-the-market theory. Id. at 241-45, 108 S.Ct. at 988-90. The Court said that [a]n investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price. Because most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action. Id. at 247, 108 S.Ct. at 992. While Basic Inc. addressed the reliance and materiality requirements, rather than the connection requirement, the fraud on the market theory is premised on the notion that fraud can be committed by any means of disseminating false information into the market on which a reasonable investor would rely. Because the fraud on the market" } ]

[ { "docid": "15448483", "title": "", "text": "Basic presumption to a suit alleging misrepresentations by research analysts. Concluding that we should not, we next consider whether plaintiffs must make a heightened showing in a suit against research analysts to warrant the presumption. Concluding that they need not, we next consider whether remand is required to provide defendants the opportunity to rebut the presumption prior to class certification. We conclude that it is. II. Application of the Fraud-on-the-Market Presumption to Suits against Research Analysts In Basic, the Supreme Court reaffirmed “that reliance is an element of a Rule 10b-5 cause of action. Reliance provides the requisite causal connection between a defendant’s misrepresentation and a plaintiffs injury.” 485 U.S. at 243, 108 S.Ct. 978 (citation omitted). The Court stressed, however, that there is “more than one way to demonstrate the causal connection.” Id. The Court noted that, given the “millions of shares changing hands daily,” in modern securities markets, “our understanding of Rule 10b-5’s reliance requirement must” evolve beyond the traditional concept of individualized reliance that was appropriate to “the face-to-face transactions contemplated by early fraud cases.... ” Id. at 243-44, 108 S.Ct. 978. Looking to the legislative history of the 1934 Securities Act, the Court determined that “Congress’ premise” in drafting the Act was that “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.” Id. at 246,108 S.Ct. 978 (emphases added). Therefore, in an efficient market, “an investor’s reliance on any public material misrepresentations ... may be presumed for purposes of a Rule 10b-5 action.” Id. at 247, 108 S.Ct. 978 (emphasis added). The Basic Court thereby set forth a test of general applicability that where a defendant has (1) publicly made (2) a material misrepresentation (3) about stock traded on an impersonal, well-developed (i.e., efficient) market, investors’ reliance on those misrepresentations may be presumed. Id. at 248 n. 27, 108 S.Ct. 978. This is all that is needed to warrant the presumption. Defendants argue that the Basic presumption should be limited to suits involving misrepresentations made by issuers, because misrepresentations by third parties are less likely to" }, { "docid": "13909220", "title": "", "text": "the market price.”) (quoting In re LTV Sec. Litig., 88 F.R.D. 134, 143 (N.D.Tex.1980)). In effect, purchasers in a well developed market, as here, may assume that the market price accurately reflects all publicly available information, and that reliance on the market price is, therefore, plainly reasonable. Requiring that each member of a proposed class individually establish the reasonableness of his or her reliance on the market price would be as crippling to efficient class action litigation as requiring members of a proposed class to establish individual reliance on specific misrepresentations. See Basic, 485 U.S. at 242, 108 S.Ct. 978 (“Requiring proof of individualized reliance from each member of the proposed plaintiff class effectively would have prevented respondents from proceeding with a class action, since individual issues then would have overwhelmed the common ones.”). While this presumption may be rebutted by showing that the BearingPoint share price was not affected by the misrepresentations, or that the plaintiff knew of the misrepresentations when it purchased the shares, no such evidence has been adduced here. See Basic, 485 U.S. at 248-49,108 S.Ct. 978 (“[Pjetitioners may rebut proof of the elements giving rise to the presumption, or show that the misrepresentation in fact did not lead to a distortion of price or that an individual plaintiff traded or would have traded despite his knowing the statement was false.”). To the contrary, the dramatic drop in the price of BearingPoint stock after the April 20, 2005 disclosure supports the conclusion that the shares continued to be inflated by Bearing- Point’s alleged earlier misrepresentations despite any partial disclosures in 2004. Thus, individual issues of reasonable reliance will not predominate over the common issues focusing on defendants’ alleged acts in violation of the securities laws. Nor will issues concerning whether in-and-out class members can show loss causation predominate over the common issues of law and fact. Specifically, defendants contend that in-and-out trading members of the proposed class who sold before the April 20, 2005 disclosure cannot prove loss causation because any damage that resulted from their purchase of BearingPoint shares at an inflated price during the" }, { "docid": "22531995", "title": "", "text": "have acted ... if the misrepresentation had not been made.\" Ibid. We also noted that \"[r]equiring proof of individualized reliance\" from every securities fraud plaintiff \"effectively would ... prevent [ ] [plaintiffs] from proceeding with a class action\" in Rule 10b-5 suits. Id., at 242, 108 S.Ct. 978. If every plaintiff had to prove direct reliance on the defendant's misrepresentation, \"individual issues then would ... overwhelm[ ] the common ones,\" making certification under Rule 23(b)(3) inappropriate. Ibid. To address these concerns, Basic held that securities fraud plaintiffs can in certain circumstances satisfy the reliance element of a Rule 10b-5 action by invoking a rebuttable presumption of reliance, rather than proving direct reliance on a misrepresentation. The Court based that presumption on what is known as the \"fraud-on-the-market\" theory, which holds that \"the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.\" Id., at 246, 108 S.Ct. 978. The Court also noted that, rather than scrutinize every piece of public information about a company for himself, the typical \"investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price\"-the belief that it reflects all public, material information. Id., at 247, 108 S.Ct. 978. As a result, whenever the investor buys or sells stock at the market price, his \"reliance on any public material misrepresentations ... may be presumed for purposes of a Rule 10b-5 action.\" Ibid. Based on this theory, a plaintiff must make the following showings to demonstrate that the presumption of reliance applies in a given case: (1) that the alleged misrepresentations were publicly known, (2) that they were material, (3) that the stock traded in an efficient market, and (4) that the plaintiff traded the stock between the time the misrepresentations were made and when the truth was revealed. See id., at 248, n. 27, 108 S.Ct. 978;Halliburton I, supra, at ----, 131 S.Ct., at 2185-2186. At the same time, Basic emphasized that the presumption of reliance was rebuttable rather than conclusive. Specifically, \"[a]ny showing that severs" }, { "docid": "8734871", "title": "", "text": "misrepresentations are said to artificially inflate the market price of the offered securities, and hence reliance on the market price is conceptually indistinguishable from reliance upon representations made in face-to-face transactions. Note, The Fraud-On-the-Market Theory, 95 Harv.L.Rev. 1143, 1154 (1982). This theory is especially useful in the class action context, since by eliminating issues of individual reliance, it facilitates class action recovery of claims that would otherwise be too small to be litigated individually. Id. at 1159. In fact, a strong argument exists that only if such class actions are allowed to proceed will underinclusive recoveries and hence a failure to deter fraud at its inception be avoided. Id. The Third Circuit recently accepted this approach, holding in Peil v. Speiser, 806 F.2d 1154, 1161 (3d Cir.1986), that if plaintiffs show that defendants made material misrepresentations, reliance will be presumed. Defendants, of course, would be permitted to attempt to rebut this presumption. Most importantly, the Supreme Court passed on this issue barely two months ago, favorably citing Peil, supra, several times. In Basic, Inc. v. Levinson, — U.S. -, 108 S.Ct. 978, 992, 99 L.Ed.2d 194 (1988), the Court specifically held that since “most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresen tations ... may be presumed for purposes of a Rule 10b-5 action.” The Court also made clear, however, that a defendant may rebut proof of the elements giving rise to the presumption, or show that the misrepresentation in fact did not lead to a distortion of price or that an individual plaintiff traded or would have traded despite his knowing the statement was false. “Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.” Id. Defendants here disingenuously argue that the Supreme Court in Basic did not really compel the acceptance of presumptive reliance, but merely declined to disapprove it. Hairsplitting of such laser-thin precision strikes us as unconvincing, especially in" }, { "docid": "20130818", "title": "", "text": "rebut the presumption of reliance on an individual basis and that entry of judgment is, therefore premature. In this case, plaintiffs proved the element of “justifiable reliance” on Vivendi’s misrepresentations on a class-wide basis through the fraud-on-the-market theory. This theory, which applies to well-developed securities markets, assumes that the market price of stock reflects all available public information, including material misrepresentations, and assumes that investors in an efficient securities market reasonably rely on the integrity of the market price of securities. Basic v. Levinson, 485 U.S. 224, 245-47, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988); Hevesi v. Citigroup, Inc., 366 F.3d 70, 77 (2d Cir.2004). Therefore, a party who purchases securities in an efficient market need not prove that they directly relied upon or even knew of the alleged misrepresentations, since reliance is assumed once the materiality on an omission is established. See id. It is well-established that the presumption of reliance on the market price of a security under the fraud-on-the-market theory is rebuttable. As the Supreme Court stated in Basic, “Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.” 485 U.S. at 248, 108 S.Ct. 978. The Supreme Court identified several ways in which a defendant could rebut the presumption: For example, if petitioners could show that the “market makers” were privy to the truth ... and thus that the market price would not have been affected by their misrepresentations, the causal connection could be broken: the basis for finding that the fraud had been transmitted through market price would be gone. Similarly, if, despite petitioners’ allegedly fraudulent attempt to manipulate market price, news [of the allegedly concealed information] credibly entered the market and dissipated the effects of the misstatements, those who traded Ba sic shares after the corrective statements would have no direct or indirect connection with the fraud. Petitioners also could rebut the presumption of reliance as to plaintiffs who would have divested themselves of their" }, { "docid": "22748479", "title": "", "text": "Who would knowingly roll the dice in a crooked crap game?” Schlanger v. Four-Phase Systems Inc., 555 F. Supp. 535, 538 (SDNY 1982). Indeed, nearly every court that has considered the proposition has concluded that where materially misleading statements have been disseminated into an impersonal, well-developed market for securities, the reliance of individual plaintiffs on the integrity of the market price may be presumed. Commentators generally have applauded the adoption of one variation or another of the fraud-on-the-market theory. An investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price. Because most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action. C The Court of Appeals found that petitioners “made public, material misrepresentations and [respondents] sold Basic stock in an impersonal, efficient market. Thus the class, as defined by the district court, has established the threshold facts for proving their loss.” 786 F. 2d, at 751. The court acknowledged that petitioners may rebut proof of the elements giving rise to the presumption, or show that the misrepresentation in fact did not lead to a distortion of price or that an individual plaintiff traded or would have traded despite his knowing the statement was false. Id., at 750, n. 6. Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance. For example, if petitioners could show that the “market makers” were privy to the truth about the merger discussions here with Combustion, and thus that the market price would not have been affected by their misrepresentations, the causal connection could be broken: the basis for finding that the fraud had been transmitted through market price would be gone. Similarly, if, despite petitioners’ allegedly fraudulent at tempt to manipulate market price, news of the merger discussions credibly entered the market and dissipated" }, { "docid": "15448484", "title": "", "text": "early fraud cases.... ” Id. at 243-44, 108 S.Ct. 978. Looking to the legislative history of the 1934 Securities Act, the Court determined that “Congress’ premise” in drafting the Act was that “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.” Id. at 246,108 S.Ct. 978 (emphases added). Therefore, in an efficient market, “an investor’s reliance on any public material misrepresentations ... may be presumed for purposes of a Rule 10b-5 action.” Id. at 247, 108 S.Ct. 978 (emphasis added). The Basic Court thereby set forth a test of general applicability that where a defendant has (1) publicly made (2) a material misrepresentation (3) about stock traded on an impersonal, well-developed (i.e., efficient) market, investors’ reliance on those misrepresentations may be presumed. Id. at 248 n. 27, 108 S.Ct. 978. This is all that is needed to warrant the presumption. Defendants argue that the Basic presumption should be limited to suits involving misrepresentations made by issuers, because misrepresentations by third parties are less likely to materially effect market prices. But they cite no case, and we have found none, that supports such a rule. Moreover, the Basic Court did not so limit its holding and its logic counsels against doing so. The reason is simple: the premise of Basic is that, in an efficient market, share prices reflect “all publicly available information, and, hence, any material misrepresentations.” Id. at 246, 108 S.Ct. 978 (emphases added). It thus does not matter, for purposes of establishing entitlement to the presumption, whether the misinformation was transmitted by an issuer, an analyst, or anyone else. The Supreme Court’s recent decision in Stoneridge Investment Partners, LLC supports this result. In Stoneridge Investment Partners, LLC, the Court held that there is a private right of action under Section 10(b) against entities other than issuers, provided that their conduct “satisfies] each of the elements or preconditions for liability....” 128 S.Ct. at 769. Significantly, the Court applied the same Basic test to the conduct of non-issuers to determine whether the fraud-on-the-market presumption applied. Id. The Court concluded the" }, { "docid": "22050080", "title": "", "text": "a rebuttable presumption of reliance.”. Erica P. John Fund, supra, at 811. Basic presumes that “ fin an open and devel oped securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.’” 485 U. S., at 241 (quoting Peil v. Speiser, 806 F. 2d 1154, 1160-1161 (CA3 1986); emphasis added). \" 'Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.’” 485 U. S., at 241-242. As a result, “[a]n investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price,” and “an investor’s reliance on any public material misrepresentations” may therefore “be presumed for purposes of a Rule 10b-5 action.” Id., at 247 (emphasis added). If a plaintiff opts to show reliance through fraud on the market, Basic is clear that the plaintiff must show the following predicates in order to prevail: (1) an efficient market, (2) a public statement, (8) that the stock was traded after the statement was made but before the truth was revealed, and (4) the materiality of the statement. Id., at 248, n. 27. Both the Court and respondent agree that materiality is a necessary component of fraud on the market. See, e. g., ante, at 467 (materiality is “indisputably” “an essential predicate of the fraud-on-the-market theory”); Brief for Respondent 29 (“If the statement is not materially false, then no one in the class can establish reliance via the integrity of the market”). The materiality of a specific statement' is, therefore, essential to the fraud-on-the-market presumption, which in turn enables a plaintiff to prove reliance. B Basic’s fraud-on-the-market presumption is highly significant because it makes securities-fraud class actions possible by converting the inherently individual reliance inquiry into a question common to the class, which is necessary to satisfy the dictates of Rule 23(b)(3). Rule 23(b)(3) requires the party seeking certification to prove that “questions of law or fact common to class members predominate over any questions affecting only individual members.” A plaintiff" }, { "docid": "22531996", "title": "", "text": "typical \"investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price\"-the belief that it reflects all public, material information. Id., at 247, 108 S.Ct. 978. As a result, whenever the investor buys or sells stock at the market price, his \"reliance on any public material misrepresentations ... may be presumed for purposes of a Rule 10b-5 action.\" Ibid. Based on this theory, a plaintiff must make the following showings to demonstrate that the presumption of reliance applies in a given case: (1) that the alleged misrepresentations were publicly known, (2) that they were material, (3) that the stock traded in an efficient market, and (4) that the plaintiff traded the stock between the time the misrepresentations were made and when the truth was revealed. See id., at 248, n. 27, 108 S.Ct. 978;Halliburton I, supra, at ----, 131 S.Ct., at 2185-2186. At the same time, Basic emphasized that the presumption of reliance was rebuttable rather than conclusive. Specifically, \"[a]ny showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.\" 485 U.S., at 248, 108 S.Ct. 978. So for example, if a defendant could show that the alleged misrepresentation did not, for whatever reason, actually affect the market price, or that a plaintiff would have bought or sold the stock even had he been aware that the stock's price was tainted by fraud, then the presumption of reliance would not apply. Id., at 248-249, 108 S.Ct. 978. In either of those cases, a plaintiff would have to prove that he directly relied on the defendant's misrepresentation in buying or selling the stock. B Halliburton contends that securities fraud plaintiffs should always have to prove direct reliance and that the Basic Court erred in allowing them to invoke a presumption of reliance instead. According to Halliburton, the Basic presumption contravenes congressional intent and has been undermined by subsequent developments in economic" }, { "docid": "15448491", "title": "", "text": "in Basic v. Levinson, creates a rebuttable presumption that (1) misrepresentations by an issuer affect the market price of securities traded in an open market, and (2) investors rely on the market price of securities as an accurate measure of their intrinsic value. 366 F.3d at 77 (emphasis added); see also Basic, 485 U.S. at 246 n. 24, 108 S.Ct. 978 (“For purposes of accepting the presumption of reliance in this case, we need only believe that market professionals generally consider most publicly announced material statements about companies, thereby affecting stock market prices.”). Under Basic, as Judge Lynch held, the burden of showing that there was no price impact is properly placed on defendants at the rebuttal stage. Salomon Analyst II, 236 F.R.D. at 222 n. 12. Basic made clear that defendants could “rebut proof of the elements giving rise to the presumption, or show that the misrepresentation in fact did not lead to a distortion of price....” 485 U.S. at 248, 108 S.Ct. 978 (discussing the Eighth Circuit’s decision below). “Any showing that severs the link between the alleged misrepresentation and ... the price ... will be sufficient to rebut the presumption of reliance.” Id. (emphasis added); see Ceres Partners v. GEL Assocs., 918 F.2d 349, 360 (2d Cir.1990) (“Basic ... creates a rebuttable presumption of reliance and shifts to the defendant the burden of proof as to that element of the claim.... ”). The structure of this analysis does not vary according to the identity of the speaker. Defendants worry that if no heightened test is applied in suits against non-issuers, any person who posts material misstatements about a company on the internet could end up a defendant in a Rule 10b-5 action. The worry is misplaced. The law guards against a flood of frivolous or vexatious lawsuits against third-party speakers because (1) plaintiffs must show the materiality of the misrepresentation, (2) defendants are allowed to rebut the presumption, prior to class certification, by showing, for example, the absence of a price impact, and (3) statements that are “predictions or opinions,” and which concern “uncertain future event[s],” such" }, { "docid": "22532030", "title": "", "text": "\"traditional\" reliance element requires a plaintiff to \"sho[w] that he was aware of a company's statement and engaged in a relevant transaction ... based on that specific misrepresentation.\" Erica P. John Fund, supra, at ----, 131 S.Ct., at 2185. But investors who purchase stock from third parties on impersonal exchanges ( e.g., the New York Stock Exchange) often will not be aware of any particular statement made by the issuer of the security, and therefore cannot establish that they transacted based on a specific misrepresentation. Nor is the traditional reliance requirement amenable to class treatment; the inherently individualized nature of the reliance inquiry renders it impossible for a 10b-5 plaintiff to prove that common questions predominate over individual ones, making class certification improper. See Basic, supra, at 242, 108 S.Ct. 978;Fed. Rule Civ. Proc. 23(b)(3). Citing these difficulties of proof and class certification, 485 U.S., at 242, 245, 108 S.Ct. 978, the Basic Court dispensed with the traditional reliance requirement in favor of a new one based on the fraud-on-the-market theory.2 The new version of reliance had two related parts. First, Basic suggested that plaintiffs could meet the reliance requirement \" 'indirectly,' \" id., at 245, 108 S.Ct. 978. The Court reasoned that \" 'ideally, [the market] transmits information to the investor in the processed form of a market price.' \" Id., at 244, 108 S.Ct. 978. An investor could thus be said to have \"relied\" on a specific misstatement if (1) the market had incorporated that statement into the market price of the security, and (2) the investor then bought or sold that security \"in reliance on the integrity of the [market] price,\" id., at 247, 108 S.Ct. 978,i.e., based on his belief that the market price \" 'reflect[ed]' \" the stock's underlying \" 'value,' \" id., at 244, 108 S.Ct. 978. Second, Basic created a presumption that this \"indirect\" form of \"reliance\" had been proved. Based primarily on certain assumptions about economic theory and investor behavior, Basic afforded plaintiffs who traded in efficient markets an evidentiary presumption that both steps of the novel reliance requirement had been satisfied-that" }, { "docid": "12188927", "title": "", "text": "often essential to class certification in securities suits ... ”) (citation omitted); see also McLaughlin v. American Tobacco Co., 522 F.3d 215, 224 (2d Cir.2008). The Basic or “fraud-on-the-market” theory “creates a rebuttable presumption that (1) misrepresentations by an issuer affect the price of securities traded in the open market, and (2) investors rely on the market price of securities as an accurate measure of their intrinsic value.” Hevesi, 366 F.3d at 77. As such, the Basic theory allows a plaintiff alleging securities fraud to establish reliance “simply by virtue of the defendant’s public dissemination of misleading information.” Id.; see also DeMarco v. Lehman Bros., Inc., 309 F.Supp.2d 631, 635 (S.D.N.Y. 2004) (finding that, under the Basic presumption, “where there has been a misrepresentation to the securities marketplace, a rebuttable presumption arises that investors who purchased or sold securities in an efficient market relied upon the misrepresentation”) (citing Basic, 485 U.S. at 248-49, 108 S.Ct. 978). “Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.” Basic, 485 U.S. at 248, 108 S.Ct. 978; In re Salomon Analyst Metromedia, 236 F.R.D. 208, 223 (S.D.N.Y. 2006). The Supreme Court in Basic hypothesized that the link would be severed and the presumption rebutted “if, despite [defendant’s] allegedly fraudulent attempt to manipulate market price, [the truth] credibly entered the market and dissipated the effects of the misstatements.” Basic, 485 U.S. at 248-49, 108 S.Ct. 978. In that event, “those who traded ... shares after the corrective statements would have no direct or indirect connection with the fraud.” Id.; see also Kalnit v. Eichler, 85 F.Supp.2d 232, 241 (S.D.N.Y.1999). Here, there can be no dispute that the market for GS stock is an efficient market, and that investors rely on the market as an accurate measure of the stock’s value. See Basic, 485 U.S. at 249 n. 29, 108 S.Ct. 978 (finding the New York Stock Exchange to be a classic efficient market). Accordingly, the" }, { "docid": "3464426", "title": "", "text": "impact of the FTC Complaint does not relate to defendants’ scienter at the time of the alleged Rule 10b-5 violations. Therefore, the Court denies the defendants’ summary judgment motion on the basis of scienter. V. The efficiency of the market for Sloan’s stock The plaintiffs proceed under a “fraud on the market” theory, under which they need not prove reliance by each individual plaintiff on the alleged misstatements and omissions made by the defendants. The defendants argue that the market for Sloan’s shares, which were traded on the AMEX, was not an open and efficient market, and that therefore the plaintiffs cannot avail themselves of the benefits of the “fraud on the market” theory, and must prove reliance by each individual plaintiff. See Defs’ Mem. at 3. The “fraud on the market” theory posits that in an open and developed securities market, the price of a company’s stock is determined by publicly available material information about the company. In such a situation, misleading statements can affect the price of the company’s stock, thus defrauding purchasers of the stock even if they do not rely on the misstatements. See Basic, 485 U.S. at 241-42, 108 S.Ct. 978; Quintel, 72 F.Supp.2d at 297; Columbia, 155 F.R.D. at 480. As the Supreme Court explained in Basic: “An investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price. Because most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action.” 485 U.S. at 247, 108 S.Ct. 978. Therefore, in a case involving plaintiffs who purchased their shares in an efficient market, the “fraud on the market” theory affords the plaintiffs a rebuttable presumption of reliance. See id.; Quintel, 72 F.Supp.2d at 297. Although the defendants argue that the market for Sloan’s stock was not an open and efficient market, they have offered no eases where a court has determined that a stock traded on the AMEX was not considered to have been traded in" }, { "docid": "20168834", "title": "", "text": "relied upon the defendant’s deceptive acts. Erica P. John Fund, Inc. v. Halliburton Co., — U.S. -,-, 131 S.Ct. 2179, 2184 -2185, 180 L.Ed.2d 24 (2011) (citing Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, 552 U.S. 148, 159, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008)). “The traditional (and most direct) way a plaintiff can demonstrate reliance is by showing that he was aware of a company’s statement and engaged in a relevant transaction — e.g., purchasing common stock-based on that specific misrepresentation.” (Id at 2185.) However, the Supreme Court recognized that this limited proof of reliance would place “an un realistic evidentiary burden” on a plaintiff trading in an “impersonal market” or in cases where a proposed class of plaintiffs is alleged. (Id.) (citing Basic Inc. v. Levinson, 485 U.S. 224, 245, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)). Therefore, the Supreme Court found that a plaintiff is permitted to “invoke a rebuttable presumption of reliance based on what is known as the ‘fraud-on-the-market’ theory[,]” which provides that “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.” (Id.) (citing Basic, 485 U.S. at 246, 108 S.Ct. 978). The presumption is permissible “[b]ecause the market ‘transmits information to the investor in the processed form of a market price’ [and it can be presumed] that an investor relies on public misstatements whenever he buys or sells stock at the price set by the market.” (Id.) (citing Basic, 485 U.S. at 244, 247,108 S.Ct. 978). “[I]n order to invoke Basic’s rebuttable presumption of reliance, ... [a plaintiff] must demonstrate that the alleged misrepresentations were publicly known ... that the stock traded in an efficient market, and that the relevant transaction took place ‘between the time the misrepresentations were made and the time the truth was revealed.’ ” (Id.) A review of the CAC in this case reveals that Plaintiffs have asserted allegations sufficient to satisfy their invocation of the presumption of reliance. The Court has previously found that Plaintiffs adequately pled that Defendants made various alleged misleading statements or misrepresentations in their communications with" }, { "docid": "1814013", "title": "", "text": "and the Fraud-on-the Market Theory. Defendants contend that individual issues concerning reliance predominate over common issues, at least for a portion of the proposed class period. As is often the case in securities actions, plaintiff relies on the “fraud-on-the-market” theory to establish reliance. In Basic, Inc. v. Levinson, 485 U.S. 224, 242-43, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court ruled that reliance may be presumed in securities cases under the fraud-on-the-market doctrine. Basic “created a rebuttable presumption of investor reliance based on the theory that investors presumably rely on the market price, which typically reflects the misrepresentation or omission.” No. 81 Employer-Teamster Joint Council Pension Trust Fund v. America West Holding Corp., 320 F.3d 920, 934 n. 12 (9th Cir.2003). Without the presumption, class certification would be virtually impossible as individual questions regarding reliance would predominate over common questions. Binder v. Gillespie, 184 F.3d 1059, 1063 (9th Cir.1999); In re Initial Public Offering Securities Litigation, 471 F.3d 24, 42-43 (2d Cir. 2006). The fraud-on-the-market theory is based on the efficient market hypothesis (in some form) and therefore is contingent upon the alleged misrepresentation or omission being disseminated into an efficient market: The fraud-on-the-market presumption is “based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business ____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements” .....Thus, the presumption of reliance is available only when a plaintiff alleges that a defendant made material representations or omissions concerning a security that is actively traded in an “efficient market,” thereby establishing a “fraud on the market.” Binder v. Gillespie, 184 F.3d 1059, 1064 (9th Cir.1999) (citations omitted). Specifically, the requirements for the presumption are as follows: (1) that the defendant made public misrepresentations; (2) that the misrepresentations were material; (3) that the shares were traded on an efficient market; and (4) that the plaintiff traded the shares between the time the misrepresentations were made and the time the truth" }, { "docid": "11360136", "title": "", "text": "Blackie v. Barrack, where plaintiff alleges there has been a material misrepresentation, reliance is presumed where investors trade in securities in well developed markets because in efficient markets, the market price of securities purportedly reflects all material, public information and thus the investor may be presumed to rely upon the integrity of the market price. 485 U.S. at 241-49, 108 S.Ct. 978. In Basic, Inc., the Supreme Court explained, “The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business .... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.” Basic, Inc., 485 U.S. at 241-42, 108 S.Ct. 978, quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986). Thus the investor may rely on the price of the stock, which reflects all publicly available information. Where reliance is presumed under the fraud-on-the-market theory, reliance can be treated as a common, instead of an individual, issue with regard to proof. The Supreme Court found that the presumption was consistent with congressional policy underlying the Securities Exchange Act of 1934 and was supported by common sense and probability. Id. at 246, 108 S.Ct. 978. The United States Supreme Court further stated, “Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.” Id. For example the defendant may show that the plaintiff would have made the same investment decision even if he had known about the misstatement or nondisclosure, or that the plaintiff knew of the misstatement or nondisclosure before he traded, or that the material information was incorporated into the market price before the plaintiff" }, { "docid": "16267602", "title": "", "text": "reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action.” Id. at 247, 108 S.Ct. 978. Application of the reliance presumption is not, however, automatic in all federal securities-fraud actions. To gain the benefit of the presumption, a plaintiff must prove “(1) that the defendant made public misrepresentations; (2) that the misrepresentations were material; (3) that the shares were traded on an efficient market”; and (4) that the plaintiff purchased the shares after the misrepresentations but before the truth was revealed. Basic, 485 U.S. at 248 n. 27, 108 S.Ct. 978 (citing Levinson v. Basic, Inc., 786 F.2d 741, 750 (6th Cir.1986)). In this case, Grant Thornton contends that the fraud-on-the-market theory cannot be applied to create the reliance presumption because (1) Keystone’s shares were not traded on an efficient market, and (2) Grant Thornton did not make any public misrepresentations — i.e., misrepresentations on which the market could rely. It therefore contends that as a matter of law, the district court erred in applying the fraud-on-the-market presumption of reliance. Without that presumption, the plaintiffs must prove individualized reliance and therefore almost certainly cannot meet the requirement of 23(b) that common questions predominate over questions affecting only individual members. Grant Thornton also contends that the district court erred by “refusing to look beyond the pleadings” in determining that the fraud-on-the-market presumption of reliance applied in this case. In its certification order, the district court recognized that “the predominance requirement can be a sticking point in securities class action certifications where fraud is alleged because individual issues of reliance on fraudulent misrepresentations may be such as to undercut a showing of predominance.” Indeed, the court observed that in this case “plaintiffs were in fact exposed to differing combinations of omissions and misrepresentations, including some oral, making individual reliance a live issue.” To overcome this barrier to finding predominance under Rule 23(b)(3), the district court applied a presumption of reliance through the fraud-on-the-market theory. In determining whether the conditions for application of this theory were satisfied, the court examined the plaintiffs’ complaint and concluded that" }, { "docid": "8734872", "title": "", "text": "Levinson, — U.S. -, 108 S.Ct. 978, 992, 99 L.Ed.2d 194 (1988), the Court specifically held that since “most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresen tations ... may be presumed for purposes of a Rule 10b-5 action.” The Court also made clear, however, that a defendant may rebut proof of the elements giving rise to the presumption, or show that the misrepresentation in fact did not lead to a distortion of price or that an individual plaintiff traded or would have traded despite his knowing the statement was false. “Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.” Id. Defendants here disingenuously argue that the Supreme Court in Basic did not really compel the acceptance of presumptive reliance, but merely declined to disapprove it. Hairsplitting of such laser-thin precision strikes us as unconvincing, especially in light of the Court’s strong language in the Basic opinion discussing the need for a fraud-on-the-market theory, see generally Basic, 108 S.Ct. at 988-992, and its several favorable citations to the Third Circuit’s opinion in Peil, supra. Lacking, too, we find defendants’ reliance on Zlotnick v. TIE Communications, 836 F.2d 818 (3d Cir.1988). While Zlotnick can arguably be seen as a cutting-back on the potential scope of Peil, we find its validity somewhat questionable in light of Basic, supra. Not only is Basic a later opinion of a superior court, it also makes several positive references to Peil, supra, the scope of which Zlotnick arguably constricts. But even if Zlotnick remains in full force, we find that it does not assist the defendants’ cause. In the first instance, it is factually inapposite. Zlotnick concerned a short sale of stock, where the point of selling a stock is that-the seller believes the price of that stock overestimates its true value, i.e., that the market price is not an accurate valuation. Such is hardly the case in" }, { "docid": "11360137", "title": "", "text": "Cir.1986). Thus the investor may rely on the price of the stock, which reflects all publicly available information. Where reliance is presumed under the fraud-on-the-market theory, reliance can be treated as a common, instead of an individual, issue with regard to proof. The Supreme Court found that the presumption was consistent with congressional policy underlying the Securities Exchange Act of 1934 and was supported by common sense and probability. Id. at 246, 108 S.Ct. 978. The United States Supreme Court further stated, “Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.” Id. For example the defendant may show that the plaintiff would have made the same investment decision even if he had known about the misstatement or nondisclosure, or that the plaintiff knew of the misstatement or nondisclosure before he traded, or that the material information was incorporated into the market price before the plaintiff bought or sold his securities. Id. at 248-49, 108 S.Ct. 978. Another way to rebut the fraud-on-the-market presumption of reliance is to demonstrate that the market for the security was not efficient, an approach that has recently had some success. See, e.g., Brian E. Pastuszenki, Inez H. Friedman-Boyce, and Goodwin Procter, Back to Basic — Challenging the Application of the Efficient Market Hypothesis in Federal Securities Lawsuits, SK080 ALI-ABA 907 (Apr. 28-29, 2005). To determine whether an action is “primarily a nondisclosure case or a positive misrepresentation case” for the applicability of the Ute presumption or the fraud-on-the-market theory, the Fifth Circuit focuses on under which subsection of Rule 10b-5 the misconduct alleged in the pleadings falls. Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359-60 (5th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). A plaintiffs claim may give rise to the Ute presumption of reliance based on material omission if it arises under Rule 10b-5(a) (“to employ any device, scheme, or artifice to defraud”) and/or (c) (“to engage in" }, { "docid": "17094047", "title": "", "text": "the 23(a) prerequisites are satisfied and, additionally, “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). 1. Predominance The dispute between the parties regarding the predominance requirement quickly devolves into a retreading of ground already covered during the motion to dismiss stage. To set the scene quickly, I note Swack argues that the issues of liability and damages are common to the class and, therefore that the predominance requirement of 23(b)(3) is readily satisfied. This argument proceeds from Swack’s intention to satisfy her burden of proof on the element of reliance by employing the fraud-on-the-market theory discussed in greater detail in Part II.C.3 supra to establish a class-wide presumption of reliance on Defendants’ allegedly fraudulent conduct. Citing the holding in Basic that the fraud-on-the-market reliance presumption may be rebutted, inter alia, by demonstrating that “the misrepresentation in fact did not lead to a distortion in price,” Basic, 485 U.S. at 248, 108 S.Ct. 978, the Defendants counter that Swaek is not entitled to rely upon the presumption because she has failed to establish that the Defendants’ allegedly false statements caused any artificial inflation in the share price of Ra-zorfish stock during the relevant time period. The matter of what, if any, showing a plaintiff seeking to benefit from the Basic presumption of reliance in a ease based upon statements by research analysts- — rather than those by securities issuers — must make at the class certification stage is an open question and one on which no circuit court of appeal has yet spoken. At the trial court level, the topic has been taken up recently by several judges in the Southern Distinct of New York, who have reached different conclusions regarding the required showing. First, in the WorldCom, Inc. Securities Litigation, the court determined that the plaintiffs were entitled to apply the fraud-on-the-market reliance presumption from Basic in an action based upon" } ]

[ { "docid": "17350291", "title": "", "text": "the claim and that structure is identical or equivalent to the corresponding structure in the specification. Welker Bearing Co. v. PHD, Inc., 550 F.3d 1090, 1099 (Fed.Cir.2008). To satisfy the summary judgment standard, a patentee’s expert must set forth the factual foundation for his infringement opinion in sufficient detail for the court to be certain that features of the accused product would support a finding of infringement under the claim construction adopted by the court, with all reasonable inferences drawn in favor of the non-mov-ant. Arthur A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1047-48 (Fed.Cir.2000). This court considers the sufficiency of an expert’s opinion at summary judg ment according to the standards of regional circuit law. Id. at 1048. The standard in the United States Court of Appeals for the Sixth Circuit is similar to the standard set forth in Arthur A. Collins, namely, that “[a]n expert opinion submitted in the context of a summary judgment motion must ... set forth facts and, in doing so, outline a line of reasoning arising from a logical foundation.” Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d 655, 663-64 (6th Cir.2005) (quotations omitted). IV. Turning to Dr. Michalson’s declaration, this court concludes that it does not sufficiently identify the structural elements of the claimed “data transmitting means.” An expert’s unsupported conclusion on the ultimate issue of infringement will not alone create a genuine issue of material fact. Arthur A. Collins, 216 F.3d at 1046. Moreover a party may not avoid that rule “by simply framing the expert’s conclusion as an assertion that a particular critical claim limitation is found in the accused device.” Id. This record discloses no more than an unsupported conclusion of infringement that is not sufficient to raise a genuine issue of material fact. Dr. Michalson’s statement that “[sjerial input buses receive information from each optical drive to an ITDM for multiplexing subcode data which is then transmitted to the host bus interface” does not pinpoint where those elements are found in the accused devices. His citation to a page number in Sony’s Service Manual for" } ]

[ { "docid": "22454868", "title": "", "text": "under step two. Here, though, we think it is clear for the reasons stated that the claims are not directed to an abstract idea, and so we stop at step one. We conclude that the claims are patent-eligible. IV Alternatively, Microsoft encourages us to affirm the invalidity of claim 17 on the ground of indefiniteness. According to Microsoft, the previously-recited four-step algorithm is not a sufficient structure for the claimed function of “configuring said memory according to a logical table.” For a claim element recited in means-plus-function format, “the specification must contain sufficient descriptive text by which a person of skill in the field of the invention would ‘know and understand what structure corresponds to the means limitation.’ ” Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1383-84 (Fed. Cir.2011) (quoting Finisar Carp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed.Cir.2008)). “[W]hile it is true that the patentee need not disclose details of struc tures well known in the art, the specification must nonetheless disclose some structure.” Biomedino LLC v. Waters Techs. Corp., 490 F.3d 946, 952 (Fed.Cir.2007) (quoting Default Proof Credit Card Sys. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1302 (Fed.Cir.2005)). The district court found that the four-step algorithm sufficiently identified a structure for a person of skill in the art to implement the function of “configuring said memory according to a logical table.” We agree. Step one of the four-step algorithm relies on well-known techniques in the database arts for setting up a table in computer memory. Microsoft does not allege that an ordinary artisan would not understand the algorithm. Steps two through four then provide particular details for modifying some such well-known configuration in accordance with the disclosed invention. The fact that this algorithm relies, in part, on techniques known to a person of skill in the art does not render the composite algorithm insufficient under § 112 ¶ 6. Indeed, this is entirely consistent with the fact that the sufficiency of the structure is viewed through the lens of a person of skill in the art and without need to “disclose" }, { "docid": "11965333", "title": "", "text": "2016 WL 1258885, at *11; see id. at *11-12 (crediting expert testimony that magnesium stearate “is one of the most lipophilic things [the expert could] imagine,” and explaining that a concentration of 0.5% magnesium stearate could increase dissolution time by more than tenfold). No one has suggested that magnesium stearate, when in the outer matrix, is neither lipo-philic nor hydrophilic. Thus, we conclude that, based on the district court’s findings, the magnesium stearate retains its lipo-philic character in the extragranular space. Accordingly, the magnesium stearate structurally and functionally relates to the invention, and its presence in the' outer matrix violates the “consisting of’ requirement in claim 1(b). Shire argues, and the district court held, that the magnesium stearate in Watson’s product — which Watson includes as a lubricant rather than for its lipophilic properties — is unrelated to the invention because it is not sufficiently lipophilic to render the outer matrix lipophilic. But No-Han did not restrict “related” components to only those that advance or are intended to advance a Markush group’s allegedly inventive elements. And we decline to impose such a requirement, which would in effect equate the scope of a Markush group’s “consisting of’ language with either “comprising” or “consisting essentially of’ language. See CIAS, Inc. v. Alliance Gaming Corp., 504 F.3d 1356, 1360 (Fed. Cir. 2007) (“ ‘[Comprising’ ... is inclusive or open-ended and does not exclude additional, unrecited elements or method steps.... ” (quoting Georgia-Pacific Corp. v. U.S. Gypsum Co., 195 F.3d 1322, 1327-28 (Fed. Cir. 1999))); AK Steel Corp. v. Sollac & Ugine, 344 F.3d 1234, 1239 (Fed. Cir. 2003) (“The phrase ‘consisting essentially of ... permit[s] inclusion of components not listed in the claim, provided that they do not ‘materially affect the basic and novel properties of the invention.’ ” (quoting PPG Indus. v. Guardian Indus. Corp., 156 F.3d 1351, 1354 (Fed. Cir. 1998))). Shire also argues that we must interpret claim 1(b) to coyer products with magnesium stearate in the extragranular space because the ’720 patent examples disclose magnesium stearate in the outer matrix. Assuming that Shire is correct about the content of" }, { "docid": "17024738", "title": "", "text": "mLLDPE. To construe the inner layers of element (b) as open not only to the four recited resins but also to any other polyo-lefin resin conceivably suitable for use in a stretchable plastic cling film would be to construe the claims to cover any plastic film with five compositionally different inner layers, each of which contains any amount of one of the four recited resins. Construing element (b) in this manner would render the ’055 patent’s Markush language — “each layer being selected from the group consisting of’ — equivalent to the phrase “each layer comprising one or more of.” What is critical here is that the transitional phrase that appears in element (b), “consisting of,” is a term of art in patent law with a distinct and well-established meaning. Use of the transitional phrase “consisting of’ to set off a patent claim element creates a very strong presumption that that claim element is “closed” and therefore “exclude[s] any elements, steps, or ingredients not specified in the claim.” AFG Indus., Inc. v. Cardinal IG Co., Inc., 239 F.3d 1239, 1245 (Fed. Cir. 2001). “ ‘Consisting of is a term of patent convention meaning that the claimed invention contains only what is expressly set forth in the claim.” Norian Corp. v. Stryker Corp., 363 F.3d 1321, 1331 (Fed. Cir. 2004). Thus, if a patent claim recites “a member selected from the group consisting of A, B, and C,” the “member” is presumed to be closed to alternative ingredients D, E, and F. By contrast, the alternative transitional term “ ‘comprising’ creates a presumption that the recited elements are only a part of the device, that the claim does not exclude additional, unrecited elements.” Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1348 (Fed. Cir. 2001). The presumption that a claim term set off by the transitional phrase “consisting of’ is closed to unrecited elements is at least a century old and has been reaffirmed many times by our court and other courts. We are unaware of any case that has construed a patent claim’s use of “consisting of’" }, { "docid": "22279804", "title": "", "text": "is entitled to summary judgment under Rule 56(c) “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.” In reviewing the district court’s grant of summary judgment, this court draws all reasonable inferences from the evidence in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate when it is apparent that only one conclusion as to infringement could be reached by a reasonable jury. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 540, 48 USPQ2d 1321, 1324 (Fed.Cir.1998). Summary judgment of noninfringement is appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, since such failure will render all other facts immaterial. London v. Carson Pirie Scott & Co., 946 F.2d 1534, 1537, 20 USPQ2d 1456, 1458 (Fed.Cir.1991). A patent infringement analysis involves two steps: (1) claim construction and, (2) application of the properly construed claim to the accused product. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The first step, claim construction, is a matter of law that this court reviews without deference. Cybor Corp. v. FAS Tech., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (fin banc). Whether the accused device con tains an element corresponding to each claim limitation, or its equivalent, is a question of fact reviewed under the clearly erroneous standard of review. Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112, 1125, 37 USPQ2d 1816, 1826 (Fed.Cir.1996). DISCUSSION I. Claim Construction On appeal, Telemac argues that the court misconstrued two terms of the patent. Specifically, Telemac challenges the district court’s construction of the “communication means” and the “complex billing algorithm.” A. “Communication Means” Claim 1 of the patent claims a mobile phone system having a" }, { "docid": "23533163", "title": "", "text": "the district court’s conclusion that Claim 1 does not literally read on the Vortex racket.”). As discussed below, this case presents the opposite procedural posture; the claim construction itself is not contested, but the application of that claim construction to the accused device is. Thus, this court applies the traditional rule for review of jury verdicts of factual issues discussed above. This case presents three primary infringement issues: 1) whether the accused products contain “licensee unique ID generating means”; 2) whether the accused products contain a “registration system” with a “mode switching means” that precludes full use of the software unless the outputs of the local and remote algorithms match; and 3) whether Microsoft can be liable for direct infringement when it has no control over the user’s computer. 1. “Licensee Unique ID Generating Means” The '216 patent specification describes the licensee unique ID generating means as an algorithm that functions by “combining] by addition the serial number 50 with the software product name 64 and customer information 65 and previous user identification 22 to provide registration number 66.” Id. col. 11 ll.53-56. The district court’s construction of “licensee unique ID generating means” is undisputed on appeal: it is a means plus function claim, with the function being “to generate a local or remote licensee unique ID” and the structure being “a summation algorithm or a summer and equivalents thereof.” Uniloc I Claim Construction, 447 F.Supp.2d at 190. The district court determined that no reasonable jury could find that the accused products were summation algorithms, and granted JMOL of non-infringement. The district court gave seven reasons for its decision: (1) the “circular shifting and mixing functions fundamentally create a more secure result compared to an algorithm based in summation as the specification discloses,” Uniloc II, 640 F.Supp.2d at 170; (2) summation is reversible and MD5 is irreversible and much more complicated, id. (citing Business Objects, S.A v. Microstrategy, Inc., 393 F.3d 1366, 1370 (Fed. Cir.2005)); (3) “MD5 achieves its function in a way an algorithm based in summation could not,” id.; (4) the '216 patent contained only a narrow structural" }, { "docid": "14038922", "title": "", "text": "outset, the open language of claim 1 embraces technology that may add features to devices otherwise within the claim definition. Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 1271 (Fed.Cir.1986). The claim uses two terms to show this open-ended meaning. The word “comprising” transitioning from the preamble to the body signals that the entire claim is presumptively open-ended. Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1347 (Fed.Cir.2001); Innovad Inc. v. Microsoft Corp., 260 F.3d 1326, 1333 (Fed.Cir.2001). Because the patentee invoked this open-ended treatment in claim 1 of the ’777 patent, the scope of claim 1 encompasses all safety razors satisfying the elements set forth in claim 1. The addition of elements not recited in the claim cannot defeat infringement. See Crystal Semiconductor, 246 F.3d at 1348 (“[T]he transition ‘comprising’ creates a presumption that the recited elements are. only a'part of the device, that the claim does not exclude additional, unrecited elements. KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed.Cir.2000).”). The claim element identifying the blades likewise uses another presumptively “open” claim term — “group of.” 777 patent, col. 4,1. 6. At the outset, the language “group of’ does not place any limits or closed implications on the elements following this broad designation. Claim drafters often use the term “group of’ to signal a Markush group. A Markush group lists specified alternatives in a patent claim, typically in the form: a member selected from the group consisting of A, B, and C. See Manual of Patent Examining Procedure § 803.2 (2004). A Markush group by its nature is closed. If an applicant tries to claim a Markush group without the word “consisting,” the PTO will insist upon the addition of this word to ensure a closed meaning. Thus, in order to “close” a Mar-kush group, the PTO insists on the transition phrase “group consisting of.” See Abbott Labs. v. Baxter Pharm. Prods., Inc., 334 F.3d 1274, 1280 (Fed.Cir.2003). Without the word “consisting” the simple phrase “group of’ is presumptively open. If intending to limit the claimed invention to a three-bladed razor, the" }, { "docid": "23533164", "title": "", "text": "provide registration number 66.” Id. col. 11 ll.53-56. The district court’s construction of “licensee unique ID generating means” is undisputed on appeal: it is a means plus function claim, with the function being “to generate a local or remote licensee unique ID” and the structure being “a summation algorithm or a summer and equivalents thereof.” Uniloc I Claim Construction, 447 F.Supp.2d at 190. The district court determined that no reasonable jury could find that the accused products were summation algorithms, and granted JMOL of non-infringement. The district court gave seven reasons for its decision: (1) the “circular shifting and mixing functions fundamentally create a more secure result compared to an algorithm based in summation as the specification discloses,” Uniloc II, 640 F.Supp.2d at 170; (2) summation is reversible and MD5 is irreversible and much more complicated, id. (citing Business Objects, S.A v. Microstrategy, Inc., 393 F.3d 1366, 1370 (Fed. Cir.2005)); (3) “MD5 achieves its function in a way an algorithm based in summation could not,” id.; (4) the '216 patent contained only a narrow structural disclosure that is not entitled to a broad scope, id. at 171; (5) the documentary evidence presented by Uniloc did not show what “the complex hashes in this case actually do, and whether that is equivalent to the ‘by addition’ structure Uniloc disclosed,” id. at 172; (6) Uniloc did not put forth expert opinion interpreting the documents, except for Klausner’s presentation of “factual in formation under the guise of opinion,” id. at 172 and n. 25 (citing Centricut, LLC v. Esab Grp., Inc., 390 F.3d 1361, 1369-70 (Fed.Cir.2004), but noting that case is “not a perfect fit”); and (7) “[t]he jury ‘lacked a grasp of the issues before it,’ ” id. at 173 (citing Tex. Instruments Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1570 (Fed.Cir.1996)) because it “ignored Dr. Wallach’s admittedly complex explanation and embraced Mr. Klausner’s” “incomplete, oversimplified and frankly inappropriate explanation,” id. at 170 n. 21. Uniloc argues that a reasonable jury could have concluded that MD5 and SHA1 were summation algorithms within the meaning of the '216 patent, and that the" }, { "docid": "17024762", "title": "", "text": "'[C]onsisting of is a term of art in patent law with its own construction. ...”); Norian, 363 F.3d at 1331 (quoted supra); AFG Indus., 239 F.3d at 1245 (quoted supra); Vehicular Techs. Corp. v. Titan Wheel Int’l, Inc., 212 F.3d 1377, 1382-83 (Fed. Cir. 2000) (“The phrase 'consisting of is a term of art in patent law signifying restriction and exclusion, while, in contrast, the term 'comprising' indicates an open-ended construction .... In simple terms, a drafter uses the phrase 'consisting of' to mean 'I claim what follows and nothing else.’ ” (citations omitted)); Georgia-Pacific Corp. v. U.S. Gypsum Co., 195 F.3d 1322, 1327-28 (Fed. Cir. 1999) (“The transitional phrase ‘consisting of' excludes any element step, or ingredient not specified in the claim.’’ (quoting MPEP § 2111.03)); Parmelee Pharm. Co. v. Zink, 285 F.2d 465, 469 (8th Cir. 1961) (“CT]he word 'consisting' is one of restriction and exclusion.”); In re Davis and Tuukkanen, 80 U.S.P.Q. 448, 450 (Board of Patent Interferences 1949) (\" '[Consisting of ... clos[es] the claim to the inclusion of materials other than those recited except for impurities ordinarily associated therewith.... We regard the meaning of the terms 'comprising' and 'consisting of’ to be well settled by numerous decisions_”); In re Gray, 53 F.2d 520, 521 (CCPA 1931) (“Claim 4 uses the term 'consists’ and is therefore drawn to an alloy of silver and indium without other elements.”); Hoskins Mfg. Co. v. Gen. Elec. Co., 212 F. 422, 428 (N.D. Ill. 1913) (\" 'Consist' means to stand together, to be composed of or made up of. It is a more specific term than ['comprise'].”), aff'd, 224 F. 464 (7th Cir. 1915). . Counsel for Multilayer conceded at argument, \"I don’t believe the layers can be made out of anything.” Oral Argument at 1:15-1:18. . Multilayer also cites dependent claim 32 as evidence that the Markush group of claim 1 should be construed as open to unrecited resins. Claim 32, which was added in reexamination, recites \"[t]he film of claim 1, wherein the compositional property is the presence of a resin additive.” U.S. 6,265,055 C2 col. 3 ll." }, { "docid": "19157264", "title": "", "text": "Claim 2, of the '614 patent is dependent on Claim 1 of the '614 patent and adds the limitation that the terminus comprises a vehicle. TDM incorporates its discussion of the similar Claim 4 of the '862 patent in addressing infringement of Claim 4 of the '614 patent. Discussion A. Standards for Summary Judgment of Infringement In this case, no genuine issue of material fact exists and therefore summary judgment may be granted. The Rules of this Court provide that a motion for summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” RCFC 56(c). Patent infringement issues are questions of fact but summary judgment of non-infringement nonetheless is proper when the moving party shows that “on the correct claim construction, no reasonable jury could have found infringement on the undisputed facts or when all reasonable factual inferences are drawn in favor of the patentee.” TechSearch, LLC v. Intel Corp., 286 F.3d 1360, 1371 (Fed.Cir.2002); see also, Bus. Objects, S.A. v. Microstrategy, Inc., 393 F.3d 1366, 1371-72 (Fed.Cir.2005). To establish infringement, the plaintiff must prove by a preponderance of the evidence that every limitation set forth in a patent claim is found in the accused product or process either literally or by a substantial equivalent. Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed.Cir.1991) (emphasis added). This standard is known as the “all elements” rule. See Warner-Jenkinson, 520 U.S at 29, 117 S.Ct. 1040. The Court must compare the construed claim to the accused device or process to determine whether all of the claim limitations are present either literally or by a substantial equivalent. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1247-48 (Fed.Cir.1998). Failure to meet even a single element within a claim precludes a finding of literal infringement. Laitram Corp., 939 F.2d at 1535. 1. Literal Infringement Generally, a claim is literally infringed if each properly construed claim element reads on the" }, { "docid": "8416015", "title": "", "text": "system memory means for accessing data stored in the system memory means and the object label identification subsystem being further electronically connected to the decryption algorithm module to accept inputs from the decryption algorithm module; B) the encryption algorithm module working in conjunction with the object labelling subsystem to create an encrypted object such that the object label identification subsystem limits access to an encrypted object. '702 Patent col. 12 1. 45-col. 13 1. 13 (emphases added). The parties dispute the construction of the phrase “multilevel multimedia security,” which appears in every asserted claim. The parties also dispute a number of limitations in the '702 Patent drafted in means-plus-function format, including the terms “digital logic means” and “system memory means” recited in independent claim 8, and fourteen other means-plus-function limitations in dependent claims 9,12,14, and 15. TecSec filed suit in the Eastern District of Virginia, alleging that the defendants’ internet servers and related software products infringed. In addition to the defendants, TecSec also alleged infringement by International Business Machines Corp. (“IBM”). Early in the case, the district court severed TecSec’s claims against IBM and stayed proceedings against the defendants. It considered the cross-motions relating to infringement, ultimately granting IBM’s motion for summary judgment of noninfringement. See TecSec, Inc. v. Int’l Bus. Machs. Corp., 769 F.Supp.2d 997 (E.D.Va.2011) (“Summary Judgment Order”). In granting summary judgment, the court held that TecSec failed to produce any evidence that IBM itself ever performed every step of the asserted method claims or ever made, used, sold or offered for sale within the United States, or imported into the United States, any products containing all of the limitations of the asserted system claims. Because IBM was selling software and because the claims required both hardware and software, the district court ruled as a matter of law that TecSec failed to present a triable issue of fact that IBM’s software contained every limitation of any asserted claim. The court also found insufficient evidence of indirect infringement. Both of those conclusions were independent of the present disputes about claim construction. As an alternate ground, the district court construed" }, { "docid": "22454877", "title": "", "text": "the issue of infringement. The district court found that Microsoft’s accused product, ADO.NET, does not infringe claim 17 of the '604 patent. The district court reached this conclusion by finding that ADO.NET does not perform the “means for indexing” recited in that claim. Claim 17, in abbreviated form, recites as follows: A data storage and retrieval system for a computer memory, comprising: means for configuring said memory according to a logical table ... and means for indexing data stored in said table. Enfish raises two arguments against the district court’s summary judgment of non-infringement: first against the claim construction for “means for indexing,” and second for the application of that claim construction to the ADO.NET product. A The district court interpreted the “means for indexing” under 35 U.S.C. § 112 ¶ 6 (2006). Such a claim element “shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” § 112 it 6. And, as noted above, “the corresponding structure for a function performed by a software algorithm is the algorithm itself.” EON, 785 F.3d at 621. The district court identified the function of the “means for indexing” as “indexing data stored in the logical table.” J.A. 270. The district court accepted Enfish’s proposal of the following algorithm as the corresponding structure: 1.Extract key phrases or words from the applicable cells in the logical table. 2. Store the extracted key phrases or words in an index, which is itself stored in the logical table. 3. Include, in text cells of the logical table, pointers to the corresponding entries in the index, and include, in the index, pointers to the text cells. J.A. 270, 338, 2543-49. On appeal, Enfish now contests the district court’s reliance on this three-step algorithm as the corresponding structure for the “means for indexing.” Enfish argues that it never meant for all three steps to be required, but instead that some of the steps or parts of the steps may be optional. Specifically, Enfish argues that the corresponding structure does not necessarily require both “pointers to the ... index” and “pointers" }, { "docid": "14902025", "title": "", "text": "matrix, it does not have an element that functions as required by the third means in the claim. Although the VRAM's data register may have \"columns\" similar to the columns claimed in the patent, the columns in the patent are on the data matrix; The VRAM's \"columns\" are not. As in Dolly, the required structure is specifically excluded. This court could not extend protection to the VRAM without ignoring the meanings and limitations of the language of claim 9. See Dolly, 16 F.3d at 398 (\"The doctrine of equivalents is not a license to ignore claim limitations.\"). In this case, the VIRAMs do not contain an equivalent for each element of the claim. Specifically, the columns of the data matrix are not \"called upon\" to read bytes of thfor-mation. Although the accused device may call upon other columns elsewhere, the claim requires the third means to call upon columns on the data matrix. This difference is not insubstantial. Even if the accused device performs a substantially similar function and reaches a substantially similar result, this court cannot overlook the clear language of this limitation of the claims. Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934, 4 USPQ2d 1737, 1739 (Fed.Cir.1987) (in banc). Therefore, in the absence of an equivalent for the third means, the accused devices do not infringe under the doctrine of equivalents. Wiener attempts to create an issue of fact with the conclusory declaration of Mr. Eklund about equivalency. Because Mr. Eklund’s statements rest on an incorrect claim interpretation, however, they do not create a factual dispute. Since Hilton Davis requires the patentee to prove insubstantial differences, 62 F.3d at 1521, and further, because, under Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), to survive a motion for summary judgment, the non-movant must make a sufficient showing that genuine issues of material fact exist on issues in which the non-movant bears the burden of proof, Wiener’s claim of equivalents fails because she has not presented “substantial evidence” regarding equivalency. No lesser evidence can suffice. Her only relevant evidence, her expert’s" }, { "docid": "14038921", "title": "", "text": "respect to each other and the guard and the cap.” Id. at col. 3, .II. 16-19 (emphasis added). The written description likewise discusses these parameters with respect to the relative positioning of each of the three blades at length at column 1, line 60 through column 2, line 40. These principles of progressive blade exposure and progressive blade span could apply equally to four or five blades. Such a geometric arrangement of three, four, or even more blades will achieve a closer shave and, at the same time, minimize excess drag. It may be that a four-bladed safety razor is a less preferred embodiment. A four-bladed razor costs more to build, requires more parts, and adds more frictional drag compared to the three-bladed version. Nevertheless, a patentee typically claims broadly enough to cover less preferred embodiments as well as more preferred embodiments, precisely to block competitors from marketing less than optimal versions of the claimed invention. ' Indeed, the language of claim 1 of the ’777 patent encompasses more than only three-bladed razors. At the outset, the open language of claim 1 embraces technology that may add features to devices otherwise within the claim definition. Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 1271 (Fed.Cir.1986). The claim uses two terms to show this open-ended meaning. The word “comprising” transitioning from the preamble to the body signals that the entire claim is presumptively open-ended. Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1347 (Fed.Cir.2001); Innovad Inc. v. Microsoft Corp., 260 F.3d 1326, 1333 (Fed.Cir.2001). Because the patentee invoked this open-ended treatment in claim 1 of the ’777 patent, the scope of claim 1 encompasses all safety razors satisfying the elements set forth in claim 1. The addition of elements not recited in the claim cannot defeat infringement. See Crystal Semiconductor, 246 F.3d at 1348 (“[T]he transition ‘comprising’ creates a presumption that the recited elements are. only a'part of the device, that the claim does not exclude additional, unrecited elements. KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed.Cir.2000).”). The claim element identifying the blades likewise" }, { "docid": "11965334", "title": "", "text": "And we decline to impose such a requirement, which would in effect equate the scope of a Markush group’s “consisting of’ language with either “comprising” or “consisting essentially of’ language. See CIAS, Inc. v. Alliance Gaming Corp., 504 F.3d 1356, 1360 (Fed. Cir. 2007) (“ ‘[Comprising’ ... is inclusive or open-ended and does not exclude additional, unrecited elements or method steps.... ” (quoting Georgia-Pacific Corp. v. U.S. Gypsum Co., 195 F.3d 1322, 1327-28 (Fed. Cir. 1999))); AK Steel Corp. v. Sollac & Ugine, 344 F.3d 1234, 1239 (Fed. Cir. 2003) (“The phrase ‘consisting essentially of ... permit[s] inclusion of components not listed in the claim, provided that they do not ‘materially affect the basic and novel properties of the invention.’ ” (quoting PPG Indus. v. Guardian Indus. Corp., 156 F.3d 1351, 1354 (Fed. Cir. 1998))). Shire also argues that we must interpret claim 1(b) to coyer products with magnesium stearate in the extragranular space because the ’720 patent examples disclose magnesium stearate in the outer matrix. Assuming that Shire is correct about the content of the examples, we still find that Shire has not “overcome the exceptionally strong presumption” that Markush groups are closed. Multilayer Stretch Cling Film Holdings, 831 F.3d at 1359 (holding that a patent specification’s listing of components not listed in a Markush group was insufficient to overcome the presumption created by “consisting of’ claim language). Shire does not challenge the district court’s construction of “consisting of,” and neither the ’720 patent specification nor the prosecution history reflect intent to' adopt a meaning of “consisting of’ other than the well-established, limited definition. Thus, we apply the-plain claim language. Accordingly, we conclude that Watson’s ANDA Product does not satisfy the claim 1(b) Markush limitation, and, by extension, does not satisfy dependent claim 3. See Ferring B.V. v. Watson Labs., Inc.-Flori da, 764 F.3d 1401, 1411 (Fed. Cir. 2014) (“One who does not infringe an independent claim cannot infringe a claim dependent [on] (and thus containing all the limitations of) that claim.” (quoting Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1552 n.9 (Fed. Cir. 1989))). We reverse" }, { "docid": "19916264", "title": "", "text": "’937 patent to exclude products per forming only the recited steps of the patent “and nothing else.” EEI contends that the district court erred by allowing the accused process’s suspension medium to include MIBK, a non-alcohol, in spite of the limitation that the suspending medium consist of water or a water-alcohol mixture. Transitional phrases, such as “comprising,” “consisting of,” and “consisting essentially of,” are terms of art in patent law that “define the scope of the claim with respect to what unrecited additional components or steps, if any, are excluded from the scope of the claim.” MPEP § 2111.03; accord Vehicular Techs. Corp., 212 F.3d at 1382-83. The phrase “consisting of’ signifies restriction and exclusion of unrecited steps or components. MPEP § 2111.03. Although “consisting of’ is a term of restriction, the restriction is not absolute. The Patent Board of Appeals has interpreted “consisting of’ to “close[ ] the claim to the inclusion of materials other than those recited except for impurities ordinarily associated therewith.” Ex parte Davis, 80 U.S.P.Q. 448, 450 (Pat. Office Bd.App.1948); see also Bethell v. Koch, 57 C.C.P.A. 1233, 427 F.2d 1372, 1373-74 (1970) (noting the parties’ concession of a similar meaning of “consisting of’). We have explained that “consisting of’ does not exclude additional components or steps that are unrelated to the invention. See Norian Corp. v. Stryker Corp., 363 F.3d 1321, 1331-32 (Fed.Cir.2004). In No-rian Corp., the District Court for the Northern District of California found as a matter of law that a product containing an unrecited element did not infringe U.S. Patent No. 6,002,065 (“the ’065 patent”) because the transitional phrase “consisting of’ excluded the additional element from the protection of the patent. Id. at 1331. Specifically, the ’065 patent taught a kit containing specified chemicals; the infringing kit contained all the recited elements of the ’065 patent, but added one element unrelated to the invention disclosed in the ’065 patent — a spatula. Id. The district court held that adding the spatula to an otherwise infringing product avoided infringement of the ’065 patent. On appeal, we reversed the district court’s holding and" }, { "docid": "16070935", "title": "", "text": "F.2d 1476, 1483, 221 USPQ 649, 654 (Fed.Cir.1984). In Amstar, we stated that an accused product did not escape infringement simply because it contained additional modifications and “merely colorable variations” in addition to the claimed limitations. Id. at 1483, 730 F.2d 1476, 221 USPQ at 654. This language used in Amstar simply recognized that the accused product in that case was “the same” as the claimed invention and already contained the claimed limitations. Id. at 1483-84, 730 F.2d 1476, 221 USPQ at 653-54. This language does not alter the well-established principle that the “mere addition of elements [in the accused product or process] cannot negate infringement.” Id. at 1482, 730 F.2d 1476, 221 USPQ at 653. The preamble of claim 1 of the '255 patent ends with the phrase “which comprises.” '255 patent, col. 11, 1. 7. It is fundamental that the use of this phrase as a transitional phrase “does not exclude additional unrecited elements, or steps (in the case of a method claim).” Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 1271, 229 USPQ 805, 812 (Fed.Cir.1986). Thus, an accused method “does not avoid literally infringing a method claim ... simply because it employs additional steps.” Id. (emphasis in original); see also Vivid Tech., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 811, 53 USPQ2d 1289, 1301 (Fed.Cir.1999) (“[A claim using] the signal ‘comprising’ ... is generally understood to signify that the claims do not exclude the presence in the accused apparatus or method of factors in addition to those explicitly recited”); Phillips Petroleum Co. v. Huntsman Polymers Corp., 157 F.3d 866, 874, 48 USPQ2d 1161, 1167 (Fed.Cir.1998) (“The use of ... ‘which comprises’ in the composition and process claims generally would mean that the claims require [the recited limitations], but that additional elements or process steps may be present.”); Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501, 42 USPQ2d 1608, 1613 (Fed.Cir.1997) (“ ‘Comprising’ is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within" }, { "docid": "11364835", "title": "", "text": "in the means for processing element: The patentee has in effect claimed everything that generates purchase orders under the sun. The system claims are therefore indefinite. Finally, contrary to ePlus’s argument, our decision in Typhoon Touch Technologies, Inc. v. Dell, Inc., 659 F.3d 1376, 1385-86 (Fed.Cir.2011), does not compel a different result. There, the district court had found that the patent claim was indefinite because it did not disclose the source code or mathematical algorithm for a particular means plus limitation. We reversed, noting that “it suffices if the specification recites in prose the algorithm to be implemented by the programmer.” Id. That holding has no application here: The problem here is not the adequacy of the substance or form of the disclosure, but the absence of any disclosure at all. See also Aristocrat, 521 F.3d at 1337 (“The question ... is not whether the algorithm that was disclosed was described with sufficient specificity, but whether an algorithm was disclosed at all.”). Unlike in Typhoon Technologies, there is not even a recitation in simple prose that can be deciphered as a structural limitation on the patent claims. Thus, ePlus’s reliance on Typhoon is unavailing. In sum, we hold that ePlus’s system claims are indefinite. B. Infringement There is no dispute that Lawson’s system is capable of infringing the method claims. Indeed, Lawson does not even argue on appeal that its software products are not within the scope of ePlus’s system claims, which are substantively quite similar to the method claims. Lawson nonetheless argues that ePlus failed to present sufficient evidence to establish that Lawson or its customers perform every step of the methods disclosed in claims 26, 28, and 29. Lawson also argues that the jury was not presented with sufficient facts to conclude that Lawson had the requisite intent and knowledge for inducement. Below, we address Lawson’s argument with respect to each claim in turn. 1. Claim 26 Lawson argues that the jury was not offered any evidence to show that any single entity (Lawson or its customers) performed every step of the method disclosed in claim 26. In" }, { "docid": "17024739", "title": "", "text": "Inc., 239 F.3d 1239, 1245 (Fed. Cir. 2001). “ ‘Consisting of is a term of patent convention meaning that the claimed invention contains only what is expressly set forth in the claim.” Norian Corp. v. Stryker Corp., 363 F.3d 1321, 1331 (Fed. Cir. 2004). Thus, if a patent claim recites “a member selected from the group consisting of A, B, and C,” the “member” is presumed to be closed to alternative ingredients D, E, and F. By contrast, the alternative transitional term “ ‘comprising’ creates a presumption that the recited elements are only a part of the device, that the claim does not exclude additional, unrecited elements.” Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1348 (Fed. Cir. 2001). The presumption that a claim term set off by the transitional phrase “consisting of’ is closed to unrecited elements is at least a century old and has been reaffirmed many times by our court and other courts. We are unaware of any case that has construed a patent claim’s use of “consisting of’ to have the same open meaning as “comprising,” and Multilayer points us to none. There may be a scenario where a patent’s specification or prosecution history give “consisting of’ the meaning of “comprising”; our decision in Conoco, Inc. v. Energy & Environmental International noted that “it is not inconceivable that a patentee could break with conventional claim construction and become his own lexicographer,” so as to give “consisting of’ an alternative, less restrictive meaning. 460 F.3d 1349, 1359 n.4 (Fed. Cir. 2006). But to overcome the exceptionally strong presumption that a claim term set off with “consisting of’ is closed to unrecited elements, the specification and prosecution history must unmistakably manifest an alternative meaning. See id. They do not here. Multilayer contends that the specification of the ’055 patent does indeed evince an unmistakable intent to open the Mar-kush group of element (b) to unrecited resins. Rather than argue that the claimed inner layers should be open to any and all resins, Multilayer focuses on one resin, low density polyethylene (LDPE), which is specifically mentioned" }, { "docid": "479057", "title": "", "text": "find North American Vaccine to be inapposite. There, unlike the present case, the disputed claim did not include the open transitional phrase “comprising.” The use of the transitional phrase “comprising” itself indicates that the elements or steps following the transition may be supplemented by additional elements or steps and still fall within the scope of the claim. See, e.g., AFG Indus. Inc. v. Cardinal IG Co., Inc., 239 F.3d 1239, 1244-45 (Fed.Cir.2001) (‘When a claim uses an ‘open’ transition phrase, its scope may cover devices that employ additional, unrecit-ed elements. We have consistently held that the word ‘comprising’ is an open transition phrase.” (citations omitted)). Indeed, it the very use of the transition “comprising” in conjunction with the article “a” or “an” that creates the presumption that the article is construed to mean one or more elements or steps, unless there is evidence of a clear intent to limit the claims. Unlike North American Vaccine, the use of “comprising” in claim 1 of the '756 and '757 patents itself establishes a presumption that those claims are “open,” and North American Vaccine is not relevant to the present case on that ground alone. In view of the above, we find that the patentees have not evinced a clear intent to limit the disputed claims to apparatuses or methods with a single illumination source. Unlike the cases relied upon by ICOS and the district court, neither the claims nor the specification in the present instance indicate any such intent on the part of the patentees. Accordingly, we give the article “an” its ordinary meaning of “one or more” and hold that the '756 and '757 patents encompass apparatuses and methods using one or more illumination sources. CONCLUSION We hold that the claim terms “an illumination apparatus” and “illuminating” in the '756 and '757 patents respectively encompass one or more illumination sources. Because the district court’s entry of summary judgment of non-infringement was premised upon an incorrect construction of these terms, the order granting summary judgment is VACATED AND REMANDED. COSTS Each party shall bear its own costs. . The difference between \"illumination" }, { "docid": "21664389", "title": "", "text": "it misunderstands the statute. Drafters of means-plus-function claim limitations are statutorily guaranteed a range of equivalents extending beyond that which is explicitly disclosed in the patent document itself: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, 'material, or acts described in the specification and equivalents thereof 35 U.S.C. § 112, ¶6 (1994) (emphasis;added). We therefore affirm the .district court’s claim construction. Ill Infringement This brings us to FSI’s cross-appeal from the district court’s grant of McGinley’s motion for summary judgment of infringement. At the summary judgment stage, the district court compared the asserted claims of the '193 patent as they had been construed in McGinley I to undisputed evidence concerning FSI’s 2705 baseball. In the accused FSI 2705 baseball, the finger placement indicia are in the shape of finger-like outlines that are blunted at the end furthest from the fingertips. 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). For purposes of the motion, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Upon reviewing the record before it at that stage of the litigation, the district court concluded that FSI had not demonstrated the existence of any genuine issue as to any material fact concerning infringement. Specifically, the finger-shaped markings on the accused FSI 2705 baseball were found by the district court to be functionally identical and structurally equivalent to the tapered egg-shaped indicia disclosed in the '193 patent: Although the markings on defendant’s ball are shaped somewhat differently than those found on plaintiffs product, the" } ]

[ { "docid": "22655609", "title": "", "text": "a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer’s competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested" } ]

[ { "docid": "2273909", "title": "", "text": "through a translator was harmless where the “translator,” another customs agent, also testified and where the translator’s fluency was not at issue). We find the reasoning of the Second and Ninth Circuits persuasive, and we adopt it. “Except in unusual circumstances, an interpreter is ‘no more than a language conduit and therefore his translation [does] not create an additional level of hearsay.’ ” Lopez, 937 F.2d at 724 (quoting United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir.1989)) (brackets in original). In Nazemian, where, as here, the review was for plain error in the absence of an objection, the court concluded that (as here) the defendant “has offered nothing to suggest that the interpreter should not have been treated as a language conduit.” 948 F.2d at 527. There is no plain error. IV. Cordero’s attorney has moved for leave to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Anders established standards for an appointed attorney who seeks to withdraw from a direct criminal appeal on the ground that the appeal lacks an arguable issue. After a “conscientious examination” of the case, the attorney must request permission to withdraw and must submit a “brief referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. at 1399. The attorney must isolate “possibly important issues” and must “furnish the court with references to the record and legal authorities to aid it in its appellate function.” United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether the case is frivolous. Anders, 386 U.S. at 744, 87 S.Ct. at 1399-1400. Cordero’s lawyer has satisfied Anders sufficiently to trigger our obligation to examine the record. The attorney has briefed the question of whether Cordero’s convictions were based upon sufficient evidence; Corde-ro has not filed a response. The district court sustained two of Corde-ro’s objections to the presentence report (“PSR”). It reduced Cordero’s offense level to 26 because" }, { "docid": "22694768", "title": "", "text": "PER CURIAM. Several months ago, in United States v. Wagner, 103 F.3d 551 (7th Cir.1996), we clarified the procedure we follow when determining whether to accept a motion by a criminal, defendant’s lawyer to withdraw from representing a defendant on appeal because no nonfrivolous issues can be advanced. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our starting point is the Anders brief itself, which we review to see if it is adequate on its face. If it explains the nature of the case and intelligently discusses the issues that a case of the sort might be expected to involve, we will not conduct an independent review of the record to determine whether a more ingenious lawyer might have found additional issues that may not be frivolous. Instead, we confine our scrutiny of the record to the portions that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues she chose to discuss is reasonable and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we will have a sufficient basis for confidence in the lawyer’s competence to forego scrutiny of the rest of the record. Then, if we agree with the brief, we will grant the attorney’s request to withdraw as counsel and dismiss the appeal as meritless. We took this approach because a lawyer submitting an Anders brief is, in essence, offering an expert opinion that the appeal is devoid of merit. If the brief, on its face, is adequate, we think we can comfortably rely on the professional opinion it offers. We are also influenced by a defendant’s response, if any, to the Anders brief which must be served on the defendant. 7th Cir. R. 51(b). And although we do not attach conclusive weight to a defendant’s failure to respond to an Anders brief, it may, in fact, be an acknowledgment that the appeal should be abandoned as hopeless. Wagner at 552. The two eases before" }, { "docid": "18990143", "title": "", "text": "whether the case is wholly frivolous). If the court finds a nonfrivolous issue, it will direct counsel to more fully brief the issue. Cf. United States v. Phillips, 390 F.3d 574, 576 (8th Cir.2004) (noting that we denied the Anders motion to withdraw and directed counsel to more fully brief two issues). By his own argument, Davis concedes that his appellate counsel fully briefed the drug-quantity issue. His only complaint concerns the motion to withdraw. The court’s usual remedy when confronted with a nonfrivolous issue in an Anders brief— order counsel to more fully brief the issue — was already accomplished in this case. Accordingly, Davis cannot establish prejudice. III. CONCLUSION We affirm the district court. . The Honorable Donald E. O'Brien, United States District Judge for the Northern District of Iowa. . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (holding that after examining the record and concluding that an appeal would be wholly without merit, counsel may file a brief informing the court of any point that arguably might support an appeal, and request permission to withdraw). . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . On the other hand, there are numerous cases where counsel raised an issue in an Anders brief, we rejected the issue on the merits, and granted the motion to withdraw. E.g., United States v. Perales, 487 F.3d 588, 589 (8th Cir.2007); United States v. Alatorre, 207 F.3d 1078, 1079 (8th Cir.2000). This procedure may be a technical violation of Anders, but nothing more. Anders, 386 U.S. at 744, 87 S.Ct. 1396. If a court gratuitously reviews an arguably frivolous issue on the merits instead of simply dismissing the case, a defendant is getting more process than he is due, rather than less. And to the extent that this ineffective assistance of counsel issue has morphed into the question of whether Davis's due process rights were denied because the Davis I panel incorrectly applied Anders, we agree with the government that this issue was not contained within the certificate of appeal-ability" }, { "docid": "2445656", "title": "", "text": "McKAY, Circuit Judge. Mr. Prieto-Duran appeals the imposition of a seventy-two-month sentence for drug offenses. The sentence was pursuant to a valid plea agreement, or Memorandum of Understanding, under Fed.R.Crim.P. 11(e)(1)(c). According to 18 U.S.C. § 3742(c), “In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(c) of the Federal Rules of Criminal Procedure a defendant may not file a notice of appeal under paragraph (3) ... unless the sentence imposed is greater than the sentence set forth in such agreement.” Paragraph (3) provides that a defendant may appeal a sentence which “is greater than the sentence specified in the applicable guideline range.” Mr. Prieto-Duran received seventy-two months, a sentence to which he specifically agreed. He is complaining because the sentencing guidelines specified a range of sixty to sixty-three months for the offenses to which he pled. However, pursuant to the plea agreement, the government agreed to forego filing a sentence enhancement information for prior criminal activities under 21 U.S.C. § 851. This enhancement would have required a ten-year term of imprisonment. This is precisely the type of appeal which is barred by 18 U.S.C. § 3742(c)(1). See United States v. Bolinger, 940 F.2d 478 (9th Cir.1991); United States v. David, 967 F.2d 592 (9th Cir.1992) (unpublished opinion). We have no jurisdiction to review the trial court’s imposition of sentence in this matter. Accordingly, the appeal is dismissed. After review, we have concluded that defendant’s counsel properly filed an Anders brief in this case. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Prieto-Duran has filed a response to the Anders brief. We have considered his arguments and found them to be without merit. In addition, because there is no basis for an appeal, appellant’s motion for appointment of new counsel is denied. Counsel’s request for leave to withdraw is granted. DISMISSED." }, { "docid": "14583957", "title": "", "text": "PER CURIAM. Alan King used stolen social security numbers to poach Hurricane Katrina relief funds, student-loan money, Pell Grant money, and credit at various banks and retailers. King pleaded guilty to stealing government property, 18 U.S.C. § 641, loan fraud, id. § 1014, false representation of social security numbers, 42 U.S.C. § 408(a)(7)(B), and federal student financial aid fraud, 20 U.S.C. § 1097(a). The district court sentenced King to a total of 105 months’ imprisonment, along with five years’ supervised release, $183,845 in restitution, and a $400 special assessment. King filed a notice of appeal; perhaps anticipating our opinion in United States v. Gammicchia, 498 F.3d 467 (7th Cir.2007) (when a criminal appeal is frivolous, the defendant’s attorneys should file an An-ders motion), his appointed counsel moved to withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). King has responded to counsel’s facially adequate brief, see Cir. R. 51(b), so we limit our review to the potential issues identified by counsel and King. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We begin with King’s belated contention that he was not of “sound mind” when he pleaded guilty because he had ingested twice his morning dose of Elavil, a drug used to treat depression and anxiety. But other than saying that the antidepressant elevated his mood, King has not explained how it possibly could have impaired his rational faculties. See, e.g., United States v. Grimes, 173 F.3d 634, 636-37 (7th Cir.1999); United States v. Groll, 992 F.2d 755, 758 n. 2 (7th Cir.1993). Moreover, King has given us no reason to doubt the veracity of his sworn statements that, notwithstanding his ingestion of the drug, he understood the charges against him, the rights that he was relinquishing by pleading guilty, and the consequences of his plea. See Nunez v. United States, 495 F.3d 544, 546 (7th Cir.2007); United States v. Fuller, 15 F.3d 646, 650 & n. 3 (7th Cir.1994). Indeed, only a few minutes after he entered his plea, King delivered" }, { "docid": "7455103", "title": "", "text": "should include, but are not limited to, the issues discussed in the CPC. We note that Simon has raised other issues before us, such as ineffective assistance of counsel claims, that counsel may also choose to address upon remand. We express no view on the merits of any of the issues raised. III. CONCLUSION For the reasons set forth above, we will vacate the order of the Appellate Division and remand the case for further proceedings in accordance with this opinion. . The Virgin Islands Legislature statutorily changed the name of the Territorial Court to the Superior Court, effective January 1, 2005. . Rule 14(b) provides that an appeal of the denial of a habeas petition may not proceed in the Appellate Division without a CPC. . Third Circuit Local Appellate Rule 109.2(a) states: “Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel's Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing.”" }, { "docid": "14098565", "title": "", "text": "PER CURIAM: In this appeal, we consider the adequacy of defense counsel’s Anders brief where the defendant has advised counsel that he does not wish to challenge his guilty plea. We conclude that ordinarily counsel must file a transcript and brief the issues surrounding the plea unless the record reflects that the defendant has chosen not to challenge the plea. I. Pursuant to a written plea agreement, Julio Garcia (Garcia) pleaded guilty to possession with intent to distribute more than 500 grams of cocaine. The district court sentenced Garcia to 64 months of imprisonment and four years of supervised release. Garcia filed a timely notice of appeal. The Federal Public Defender (FPD), court-appointed counsel for Garcia, has filed a motion to withdraw and a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Clerk of Court notified Garcia of his right to respond to counsel’s Anders brief, but he has not done so. Counsel stated in his brief that Garcia advised him that he did not wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United" }, { "docid": "23625552", "title": "", "text": "we conclude that the district court did not abuse its discretion in denying Henderson’s motion to withdraw his guilty plea. Based on the foregoing, the Government’s motion to dismiss Henderson’s appeal for want of jurisdiction is DENIED. However, having carefully reviewed the record, we find that Henderson’s appeal raises no issue of arguable merit. Therefore, the motion of Henderson’s counsel to withdraw is GRANTED, and the appeal is DISMISSED. 5th CiR.R. 42.2. . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . 18 U.S.C. § 922(g). . Henderson reserved the right to appeal any punishment imposed in excess of the statutory maximum and any upward departure from the applicable sentencing guidelines. . See 18 U.S.C. § 924(e)(1) (setting minimum punishment for persons convicted under § 922(g) with three prior convictions). .Pursuant to Anders, appointed counsel on appeal may move to withdraw from the case after fully examining the facts and the law pertaining to the case, concluding that tire appeal presents no legally non-frivolous questions, and submitting a brief explaining why the appeal presents no legally non-frivolous questions. Though we hold that we have jurisdiction to entertain Henderson's appeal, we find that the appeal itself raises no issue of arguable merit. Therefore, counsel has satisfied Anders sufficiently to allow his withdrawal from the case." }, { "docid": "22660608", "title": "", "text": "counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.” Id.; see also Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (stating that equal justice demands that destitute defendants be afforded adequate appellate review). This Court’s role is then to decide whether the case is wholly frivolous. If so, the Court can grant counsel’s motion to withdraw and dismiss the appeal under federal law, or proceed to a decision on the merits if state law so requires. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id. The Supreme Court recently explained in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 753, 145 L.Ed.2d 756 (2000), that the Anders guidelines are only suggestive, not prescriptive. See also United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order" }, { "docid": "22703688", "title": "", "text": "no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit Rule 109.2(a). This rule, like the Anders case itself, provides only a general explanation of the contours of the court’s and counsel’s obligations in the Anders situation. However, two opinions of the Court of Appeals for the Seventh Circuit, United States v. Tabb, 125 F.3d 583 (7th Cir.1997), and United States v. Wagner, 103 F.3d 551 (7th Cir.1996), have shed new light on the interpretation of Anders. These opinions fill in gaps left by Anders and its early progeny with respect to two critical questions: (1) the responsibilities of counsel in submitting an Anders brief (Tabb); and (2) the duties of the courts of appeals" }, { "docid": "22540513", "title": "", "text": "ROBERT M. PARKER, Circuit Judge: Counsel for Tracy Joseph Wagner filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel now asks that he be allowed to withdraw. Wagner similarly requests that counsel be allowed to withdraw so that he can proceed pro se on appeal. Wagner further requests that counsel’s Anders brief be stricken. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that after a conscientious examination of the record, if appointed counsel finds a criminal defendant’s case to be wholly frivolous, he or she should so advise the court and request permission to withdraw. This request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. 386 U.S. at 744, 87 S.Ct. 1396. The court further required that a copy of the brief be furnished to the defendant so as to allow him an oppor tunity to raise any issues he so chooses. Id. The Anders decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice. Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”). This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and" }, { "docid": "18990142", "title": "", "text": "withdraw under Anders because there was a nonfrivolous appellate issue. Adding to the novelty of the argument, Davis contends that the Davis I panel also did not treat the issue as frivolous because the court ruled against Davis on the merits of the issue, rather than merely dismissing the issue as frivolous. Because the issue was not frivolous, and was not treated as frivolous by either counsel or the court, Davis argues that the court violated his due process rights by ultimately allowing counsel to withdraw. Even if we accept the premise upon which Davis proceeds, he cannot prevail due to the rigors of Strickland’s prejudice prong. There is no probability that the outcome of Davis’s direct appeal would have been any different had counsel not asked to withdraw pursuant to Anders. Generally, when counsel submits an Anders brief, the court independently reviews the record for any nonfrivolous issue. Anders, 386 U.S. at 744, 87 S.Ct. 1396 (noting that it is the duty of the court, not counsel, to review the record and ultimately decide whether the case is wholly frivolous). If the court finds a nonfrivolous issue, it will direct counsel to more fully brief the issue. Cf. United States v. Phillips, 390 F.3d 574, 576 (8th Cir.2004) (noting that we denied the Anders motion to withdraw and directed counsel to more fully brief two issues). By his own argument, Davis concedes that his appellate counsel fully briefed the drug-quantity issue. His only complaint concerns the motion to withdraw. The court’s usual remedy when confronted with a nonfrivolous issue in an Anders brief— order counsel to more fully brief the issue — was already accomplished in this case. Accordingly, Davis cannot establish prejudice. III. CONCLUSION We affirm the district court. . The Honorable Donald E. O'Brien, United States District Judge for the Northern District of Iowa. . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (holding that after examining the record and concluding that an appeal would be wholly without merit, counsel may file a brief informing the court of any point that" }, { "docid": "22660609", "title": "", "text": "F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined" }, { "docid": "1297099", "title": "", "text": "of Anders. Additionally, but of significance, the magistrate noted that appellate counsel did not move to withdraw as attorney for Moss. The State argued that under Lockhart v. McCotter, 782 F.2d 1275 (5th Cir.1986), Moss’s petition should be denied because he did not show prejudice, i.e., but for counsel’s alleged errors there is a reasonable probability that the conviction would be reversed on appeal. The magistrate responded that the question of prejudice would effectively be presumed — that Moss need not show specific acts of unprofessional conduct to be entitled to relief on an Anders violation, even though no nonfrivolous issues had yet been raised. The magistrate also stated that Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), which directed that a prejudice analysis is inapplicable in the case of an Anders violation, preempts application of Lockhart. III.Abuse of Writ The ruling that Moss has not abused the writ of habeas corpus will be reversed only for abuse of discretion. Shouest v. Whitley, 927 F.2d 205, 207 (5th Cir.1991). In this case, the district court appears to have done exactly as the November 1987 remand order directed: it made a determination as to whether Moss had abused the writ process by filing a second habeas corpus petition. Review of that issue is, however, unnecessary because of our determination on the merits of Moss’s petition. IV.Ineffective Assistance of Appellate Counsel A criminal defendant may not be denied representation on appeal based on appellate counsel’s bare assertion that an appeal has no merit. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Should appellate counsel move to withdraw from representation, he must file a brief advising the court of anything that might arguably support the appeal. Id. at 744, 87 S.Ct. at 1400. Likewise, before it considers the case on its merits without the assistance of counsel, the appeals court must first find that there are no nonfrivolous issues for appeal. Id. Additionally, Anders directs that “[a] copy of counsel’s brief should be furnished to the indigent, and time allowed him to raise" }, { "docid": "13263094", "title": "", "text": "PER CURIAM. Ryan Maeder pleaded guilty to conspiring to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a). He was sentenced to 57 months’ imprisonment, three years’ supervised release, $23,477 in restitution, and a $100 fine. Mr. Maeder’s counsel filed a notice of appeal, but we permitted him to withdraw and appointed substitute counsel. His new lawyer now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a non-frivolous issue for appeal. Because Mr. Maeder declined our invitation to file a response, see Circuit Rule 51(b), and counsel’s Anders brief is facially adequate, we limit our review of the record to the potential issues identified in the brief. See United States, v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). For the reasons set forth below, we direct counsel to either amend his brief or withdraw his motion. The facts presented during Mr. Mae-der’s plea colloquy, which he admitted were true, established the following. Mr. Maeder met with two other men, Lyle Tyson and Corey Rozowski, on August 9, 2001, to plan to rob the Bank of Drum-mond in Barnes, Wisconsin. The following day, Tyson and Rozowski robbed the bank using BB guns Mr. Maeder had given them, although Mr. Maeder was not at the bank during the robbery. Following the robbery, Tyson and Rozowski fled the bank to a cabin owned by Rozowski’s relatives. Mr. Maeder met Tyson and Rozow-ski at the cabin and gave Rozowski a ride home. In his Anders brief, counsel affirmatively represents that the district court committed no errors during its Rule 11 plea colloquy and that Mr. Maeder’s plea was “knowing and voluntary and nothing [in] the record indicates otherwise.” Thus he concludes that any challenge by Mr. Mae-der to his guilty plea on that ground would be frivolous. Our own review of the colloquy has identified two obvious errors. First, the district court failed to specifically tell Mr. Maeder that he was waiving his right to a trial by pleading guilty. Fed.R.Crim.P. 11(c)(4). Second, the district court failed" }, { "docid": "14537599", "title": "", "text": "POSNER, Circuit Judge. D’Marcus Mason was sentenced to 135 months in prison for a drug offense, having pleaded guilty pursuant to a plea agreement, and he filed a timely notice of appeal. Although he has not yet filed his opening brief, the government has moved to dismiss the appeal, arguing that we lack jurisdiction because Mason waived his appeal rights as part of a plea agreement. (In fact a waiver of appeal rights does not deprive us of our appellate jurisdiction, although it is a ground for dismissing the appeal.) Mason’s counsel has filed a response in which he agrees that the appeal should be dismissed because of the waiver and asks for leave to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes a criminal defendant’s lawyer to withdraw from the representation of his client on appeal if there are no nonfrivolous grounds for an appeal. The novelty that gives rise to this opinion is a motion by counsel in a criminal case to withdraw by filing a response to a motion to dismiss, rather than by filing a formal Anders brief when the opening brief on appeal is due. A waiver of appeal even in a criminal case is normally valid and binding, e.g., United States v. Nave, 302 F.3d 719, 720-21 (7th Cir.2002); United States v. Brown, 328 F.3d 787, 788 (5th Cir.2003); United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003); but it “does not, in every instance, foreclose review.” United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002). The plea agreement containing the waiver may have preserved some issue for appeal. United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.2000). Or, if the plea agreement turns out to be unenforceable, maybe because the government committed a material breach or the plea was involuntary on the part of the defendant, the waiver falls with the agreement and the appellant can appeal. United States v. Woolley, 123 F.3d 627, 632 (7th Cir.1997); United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir.2002); United" }, { "docid": "11778383", "title": "", "text": "PER CURIAM: Francisco Baraga appeals from his sentence of 70 months’ imprisonment, 8 years’ supervised release and a $50 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school in violation of 21 U.S.C. § 846. Martin Estrella appeals from his sentence of 131 months’ imprisonment and a $100 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school, in violation of 21 U.S.C. § 846, and possession of a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924. Gold-stein, Weinstein & Fuld (“GWF”), Baraga’s retained counsel, and Howard S. Ripps, Es-trella’s retained counsel, request permission to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although Anders motions are typically made by counsel appointed for indigent defendants pursuant to Fed.R.Crim.P. 44 and the Criminal Justice Act, 18 U.S.C. § 3006A, retained counsel may properly file Anders motions. Although we have never commented on this practice, we have granted Anders motions by retained counsel. See, e.g., Grimes v. United States, 607 F.2d 6, 7 (2d Cir.1979). The Supreme Court has declared in the Anders context that retained and appointed counsel share the responsibility not to “consume the time and the energies of the court or the opposing party by advancing frivolous arguments.” McCoy v. Court of Appeals of Wisc. Dist., 486 U.S. 429, 436, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988). GWF and Ripps both claim that the court should grant their requests because the appeals contain no non-frivolous issues. The government has moved for summary affirmance as to both defendants. Because the Anders briefs are inadequate, we deny GWF and Ripps permission to withdraw until the defendants have been notified by the Clerk of their respective counsels’ desires and of the opportunity to have new counsel appointed. The government’s motions for summary affirmance are denied. GWF’s and Ripps’ briefs fail to demonstrate a minimal effort to “search the record with care, and then to explain to an" }, { "docid": "21389884", "title": "", "text": "63-78 months. He therefore asked the district court to reduce his sentence to 63 months. The Government filed a response, arguing Mr. Kurtz was not statutorily eligible for a § 3582(c)(2) reduction. On August 19, 2015, the district court denied Mr. Kurtz’s motion. He filed a timely notice of appeal on September 1, 2015. See Fed. R-App. 4(b)(l)(A)(i). C. Anders Brief We appointed the Féderal Public Defender’s Office for the District of New Mexico to represent Mr. Kurtz on appeal. On November 25, 2015, Mr. Kurtz’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential ap-pealable issues based on the record. The client may then choose to submit arguments- to the court. The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir.2005) (citations omitted). Counsel indicated he could detect no “non-frivolous arguments that the district court erred in denying Mr. Kurtz’s Motion.” Aplt. Br. at 1. He therefore sought permission to withdraw. Counsel mailed a copy of his Anders brief to Mr. Kurtz, who filed a two-page response on January 19, 2016. II. DISCUSSION A. Standard of Review “The scope of a district court’s authority in a sentencing modification proceeding under § 3582(c)(2) is a question of law that we review de novo. We review a denial of a § 3582(c)(2) motion for abuse of discretion.” United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir.2013) (quotation, citation, and brackets omitted). When counsel submits an Anders brief,’ our review of the record is de novo. See United States v. Leon, 476 F.3d 829, 832 (10th Cir.2007)" }, { "docid": "22703687", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. I. Donald Wayne Marvin pled guilty to conspiracy, robbery, and the use of a firearm during a crime of violence. Marvin wanted to appeal aspects of his sentencing, but Marvin’s counsel filed an Anders motion, requesting to withdraw from representing him and expressing his belief that there were no nonfrivolous arguments for appeal. After reviewing the brief, we conclude that it is inadequate, and deny counsel’s motion. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court explained the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to withdraw from continued representation on the grounds that there are no nonfrivolous issues to appeal. An-ders struck down a process that allowed courts of appeals to accept a mere assertion by counsel that he or she found the appeal to be “without merit.” Id. at 743, 87 S.Ct. 1396. The Court suggested, however, that if, after a “conscientious examination” of the record, counsel found no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After" }, { "docid": "19002601", "title": "", "text": "PER CURIAM. Following his conviction for distributing cocaine base, see 21 U.S.C. § 841(a)(1), Larry McGee helped authorities apprehend his supplier. Consequently, the Government moved under Federal Rule of Criminal Procedure 35(b) for a reduction in Mr. McGee’s 200-month sentence. After finding that Mr. McGee had substantially assisted the Government, the court granted the motion and reduced Mr. McGee’s sentence to 160 months’ imprisonment. Mr. McGee filed a notice of appeal, but his appointed counsel now seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to identify a nonfrivolous basis for appeal. For the reasons set forth in this opinion, we now grant counsel’s motion to withdraw and dismiss this appeal. I BACKGROUND Mr. McGee sold crack cocaine to either an informant or undercover police officers 14 times in 2005. He was charged with distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). Mr. McGee pleaded guilty to the charge. Because of the nature of the offense, as well as prior felony convictions for kidnaping, rape and possession of cocaine, the district court calculated a guidelines range of 235 to 293 months. The court, however, sentenced Mr. McGee below that range to 200 months’ imprisonment, five years of supervised release and a $100 special assessment. Mr. McGee filed a notice of appeal, but the appointed lawyer representing him at that time concluded that the appeal was frivolous and moved to withdraw under Anders. We granted counsel’s motion and dismissed the appeal. United States v. McGee, 216 Fed.Appx. 580 (7th Cir.2007). Meanwhile, Mr. McGee helped the Government apprehend his supplier, and thus the Government filed a motion, pursuant to Rule 35(b), asking the district court to reduce his sentence as a reward for his substantial assistance. The court granted that motion and gave Mr. McGee a chance to speak on his own behalf before imposing a new sentence. The court then reduced Mr. McGee’s original sentence by 40 months and imposed a 160-month term of imprisonment. The court entered a new judgment reflecting the reduced term. II" } ]

[ { "docid": "17117389", "title": "", "text": "we apply the two-injury rule in this matter. The rule is applied as follows: If the disability resulted from the natural progression of a prior injury and would have occurred notwithstanding the subsequent injury, then the prior injury is compensable and accordingly, the prior employer is responsible. If, on the other hand, the subsequent injury aggravated, accelerated or combined with claimant’s prior injury, thus resulting in claimant’s disability, then the subsequent injury is the compensable injury, and the subsequent employer is responsible. Kelaita, 799 F.2d at 1311. We have emphasized that “the aggravation [two-injury] rule applies ‘even though the worker did not incur the greater part of his injury with that particular employer.’ ” Port of Portland v. Director, OWCP, 932 F.2d 836, 839-40 (9th Cir.1991) (quoting Strachan Shipping Co. v. Nash, 782 F.2d 513, 519 n. 10 (5th Cir.1986) (en banc)). Thus, if the six months Vanover spent jackhammering and engaging in heavy lifting for Foundation “aggravated” his preexisting back injuries, Foundation is liable under the Act. We believe that the Board was correct in determining that substantial evidence existed to support the AU’s finding that Vanover’s back injury was aggravated by his employment with Foundation. There appears to be no disagreement that Vanover’s back condition steadily worsened between March and October of 1977, the period of his employment with Foundation, but Foundation contends that such degeneration was due entirely to the inevitable course of pre-March 1977 injuries. However, Vanover’s own physician since 1968, Dr. Wang, testified that Vanover’s last six months of strenuous work for Foundation was “harmful” to his back condition. Significantly, Dr. Wang was the only doctor to testify who had actually examined Vanover during the period in question. Two other doctors, although unable to speak specifically to the April to October 1977 period, corroborated Dr. Wang’s opinion regarding the aggravating effect of Vanover’s work activities on his back condition. Dr. Trauner testified that half of Vanover’s back condition resulted from the natural progression of his degenerative condition, and half stemmed from his employment tasks. Dr. Swartz attributed Vanover’s condition to “cumulative trauma” caused by his" } ]

[ { "docid": "8814299", "title": "", "text": "the injury be determined to have arisen from the company’s employment of Emery. Admiralty Coatings was thus given a full opportunity to controvert its liability and contest, if it could, the ongoing nature of Emery’s injury. The potential collateral consequences of the company’s failure to convince the factfinder of the merits of its case do not amount to a constitutional violation. B. With doubt cast aside as to the constitutionality of the administrative process, the substantive question for our consideration is simply whether Emery’s cur rent shoulder condition was caused by the November 18, 1994 sandblasting incident, at which time he was employed by Admiralty Coatings. If so, then Admiralty Coatings is responsible for the costs of Emery’s medical treatment and the award of temporary partial benefits. Admiralty Coatings denies causation, asserting that Emery’s condition is instead the result of his work as a painter for Main Industries. Admiralty Coatings maintains that the “aggravation rule” immunizes it from liability in this case. See Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 138 F.3d 134, 138 (4th Cir.1998) (“Under the LHWCA’s ‘aggravation rule,’ if an injury at work aggravates an employee’s pre-existing disability, the employer is liable for the employee’s entire resulting disability, not only the disability that would have been due to the work-related injury alone.”). The rule is usually applied on behalf of claimants for the purpose of holding their current employer liable for benefits; in this case, however, Admiralty Coatings attempts to invoke the rule as a shield, arguing that Main Industries (against which Emery has filed no claim) is responsible for the compensation award. The ALJ ruled that Emery’s current back problems were the natural progression of his initial injury, and that his employment with Main did not give rise to a supervening cause that would break the chain of relatedness between Emery’s employment with Admiralty Coatings and his required surgery: Employer argues that there was a work-related aggravation of Claimant’s shoulder injury after he returned as a painter in January 1995. I do not agree. The evidence shows that Claimant suffered a work-related injury" }, { "docid": "1021825", "title": "", "text": "such as he could have had the accident never occurred. (emphasis in the original text). We must decide whether a claimant may receive benefits under section 908(c)(2) and section 908(c)(19) because of an impairment to his leg where the actual injury was to his back. III STANDARD OF REVIEW The Board must accept the AU's factual findings if they are supported by substantial evidence. 33 U.S.C. § 921(b)(3). We must review the Board’s decisions for errors of law and for adherence to the statutory standard governing the review of an AU’s factual determinations. Bumble Bee Seafoods v. Director, Office of Workers’ Compensation Programs, 629 F.2d 1327, 1329 (9th Cir.1980). Because the Board is not a policymaking agency, its interpretation of the LHWCA is not entitled to any special deference from the courts. Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 514 n. 18, 66 L.Ed.2d 446 (1980). This court has noted, however, that it will respect the Board’s interpretation of the statute “where that interpretation is reasonable and reflects the policy underlying the statute.” National Steel and Shipbuilding Co. v. United States Department of Labor, 606 F.2d 875, 880 (9th Cir.1979). IV DISCUSSION The LHWCA provides that compensation shall be payable “in respect of disability” which “results from an injury” to a person covered by the statute. 33 U.S.C. § 903(a). The term “injury” is defined in the LHWCA as an “accidental injury ... arising out of and in the course of employment....” 33 U.S.C. § 902(2). The term “disability” is defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” 33 U.S.C. § 902(10). Under the facts before us, Long, an employee covered by the LHWCA, suffered an accidental injury to his back while working. Thus, he was entitled to compensation. The LHWCA provides that compensation for an incapacity to earn wages shall be payable pursuant to a fixed schedule for the total or partial" }, { "docid": "11537449", "title": "", "text": "a disability award was made pursuant to provisions of the LHWCA intended “ ‘to compensate employees ... for wage-earning capacity lost because of injury.’ ” Eagle Marine Servs. v. Director, OWCP, 115 F.3d 735, 736 (9th Cir.1997) (quoting Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 298, 115 S.Ct. 2144, 2148, 132 L.Ed.2d 226 (1995)). When an injury develops over the course of a long-shore worker’s career, “liability rest[s] on the employer covering the risk at the time of the most recent injurious exposure related to the disability.” Port of Portland v. Director, OWCP, 932 F.2d 836, 840 (9th Cir.1991). The purpose of this “last employer rule is to assign liability ... to one of several potentially liable employers or insurers and thereby avoid the administrative difficulties and delays that would accompany an apportionment of liability.” Id. at 841. Employers Stevedoring Services of America (SSA) and Jones Oregon Stevedoring (Jones) do not dispute that Ramey was employed by them during his last month as a longshore worker and, because they are represented by the same insurance carrier, they do not dispute liability between them. They do dispute, however, whether during that last month there was a “last injurious exposure” that would give rise to a finding of liability. Employers assert that the ALJ was correct in ruling that although Ramey sustained a work-related hearing loss, Ramey failed to prove that he was exposed to potentially injurious noise while employed by Jones or SSA. Ramey’s case thus turns on the sufficiency of the evidence offered to support his allegation that he was exposed to excessive vocational noise during his employment with either Jones or SSA. Crucial to resolving that issue is the statutory presumption of 33 U.S.C. § 920(a), providing that a claimant’s injury is presumed to be covered by the Act in the absence of substantial evidence to the contrary. We have reasoned that the presumption reflects the “humanitarian policy underlying the Act,” and “requires resolution of all doubtful questions of fact in favor of the injured employee.” Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 1328 (9th Cir.1980)." }, { "docid": "9334595", "title": "", "text": "F.2d 1544, 1553 n. 2 (9th Cir.1991) (concurring opinion). Congress sought to ensure that employers would not hesitate to hire a partially disabled person out of fear of increasing their liability in the event that a work-related injury, combined with a preexisting partial disability, resulted in a total disability. Todd Pac. Shipyards, 913 F.2d at 1429. To be entitled to 8(f) relief, the employer must establish (1) that the employee had an existing permanent partial disability prior to the employment injury; (2) that the disability was manifest to the employer prior to the employment injury; and (3) that the current disability is not due solely to the most recent injury. Id. Although the AD found that Lockheed had met all three of these criteria, the Board held that there was no substantial evidence for the AD to find that Sekin had an existing permanent partial disability pri- or to the 1984 injury. The Board reviews the AD’s decisions to determine whether factual findings are supported by “substantial evidence” and to correct any errors of law. 33 U.S.C. § 921(b)(3). We conduct an independent review. The AD’s findings must be ac cepted when they are supported by substantial evidence. Container Stevedoring, 935 F.2d at 1546. Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir.1989). In reaching his decision, the AU relied upon the “cautious employer” test to support his finding of permanent partial disability. Under this test, an employer may establish an employee’s permanent partial disability predating the most recent injury by showing that the employee had such a serious physical disability in fact that a cautious employer would have been motivated to discharge the handicapped employee because of a greatly increased risk of employment-related accident and compensation liability. C & P Tel." }, { "docid": "5783591", "title": "", "text": "Affirmed by published per curiam opinion. OPINION PER CURIAM: Norfolk Shipbuilding & DryDock Corporation (“Norshipco”) petitions for review of the order of the Benefits Review Board of the Department of Labor (“Board”) affirming the administrative law judge’s (“ALJ”) order finding Norshipco the responsible employer and awarding permanent total disability benefits to Theodore R. Faulk for asbestos-related peritoneal mesothelio-ma under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C.A. §§ 901-950 (West 1986 & Supp.1999). We have jurisdiction under section 21(c) of the LHWCA to review final orders of the Board for injuries occurring in states within the circuit. 33 U.S.C. § 921(c). I. We review Board decisions for errors of law and for adherence to the statutory standard governing the ALJ’s factual findings. See Newport News Shipbuilding and Dry Dock Co. v. Director, OWCP (Harcum), 131 F.3d 1079, 1081 (4th Cir.1997); 33 U.S.C. § 921(b)(3). Section 21(b)(3) of the LHWCA directs that “[t]he findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole.” 33 U.S.C. § 921(b)(3). To determine whether the Board complied with the standard, the Court of Appeals conducts an independent review of the administrative record. Bumble Bee Seafoods v. Director, OWCP (Hanson), 629 F.2d 1327, 1329 (9th Cir.1980). Like the Board, the Court of Appeals will uphold the factual findings of the ALJ so long as they are supported by substantial evidence, and it will not disregard these findings merely “on the basis that other inferences might have been more reasonable.” Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. (Carmines), 138 F.3d 134, 140 (4th Cir.1998). Review of factual findings is limited, and “[d]eference must be given the fact-finder’s inferences and credibility assessments.” Id. (quoting Newport News Shipbuilding and Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir.1988)). Nevertheless, to be sufficient, the evidence must be “more than a scintilla but less than a preponderance,” Elliott v. Administrator, Animal & Plant Health Inspection Serv., 990 F.2d 140, 144 (4th Cir.1993), and “such relevant evidence as a" }, { "docid": "9585103", "title": "", "text": "the ALJ’s decision was not supported by substantial evidence, and that the ALJ’s opinion failed to adequately address, and give proper weight to, evidence favorable to Sealand. In essence, Sealand complains that the ALJ credited Gasparic’s witnesses and evidence and rejected its own. However, we are not free to re-weigh the evidence or to make determinations of credibility. See F.H. McGraw & Co. v. Lowe, 145 F.2d 886, 887-88 (2d Cir.1944); see also Ingalls Shipbuilding, Inc. v. Director, OWCP, 991 F.2d 163, 165 (5th Cir.1993) (reviewing court “typically defer[s] to the ALJ’s credibility choices between witnesses and evidence”). The scope of our review is limited: “We will only consider whether the BRB made any errors of law and whether the ALJ’s findings of fact, in light of the entire record, are supported by substantial evidence.” Crawford v. Director, OWCP, 932 F.2d 152, 154 (2d Cir.1991). See O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895 (1965); Potenza v. United Terminals, Inc., 524 F.2d 1136, 1137 (2d Cir.1975). We have carefully reviewed the entire record and conclude that substantial evidence exists to support the ALJ’s findings. 2. Sealand also argues that the BRB erred when it denied Sealand section 8(f) relief. In section 8(f), Congress recognized that employers might be disinclined to hire and retain partially disabled workers for fear of major liability should a work injury aggravate the pre-existing disability. See Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 202, 69 S.Ct. 503, 505, 93 L.Ed. 611 (1949). Accordingly, Section 8(f) limits an employer’s compensation liability to two years if an employee with a pre-existing permanent partial disability sustains a work-related injury that results in total, permanent disability. 33 U.S.C. § 908(f). After two years, compensation liability shifts to a special fund established under 33 U.S.C. § 944. “To obtain the benefit of section 8(f), an employer must show that (1) ‘the employee had a pre-exist-ing permanent partial disability,’ (2) ‘this disability was manifest to the employer prior to the subsequent injury,’ and (3) the ‘subsequent injury alone" }, { "docid": "189071", "title": "", "text": "penalty with respect ' to the period commencing with the triggering date and ending on December 31, 1990. See National Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1293-95 (9th Cir.1979) (assessing penalty commencing on date obligation to give notice first arises). III. Interest Upon Matufic’s motion for reconsideration of his original decision, the ALJ found that it “would be inequitable to assess interest against the Employer when the delay in payment of benefits was occasioned by the refusal of Claimant to accept the tender of appropriate benefits.” This determination was in error, and we reverse. We have held that interest on a disability award is mandatory. See Sproull v. Director, OWCP, 86 F.3d 895, 900 (9th Cir.1996); Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 625 (9th Cir.1991). In Sproull, we accepted the Director’s interpretation that “interest is a necessary and inherent component of ‘compensation’ because it ensures that the delay in payment of compensation does not diminish the amount of compensation to which the employee is entitled.” Sproull, 86 F.3d at 900. Furthermore, we have extended this principle to “pre-judgment” interest, meaning that interest accrues from the date a benefit came due, rather than from the date of the ALJ’s award. See Hunt v. Director, OWCP, 999 F.2d 419, 421-22 (9th Cir.1993). Jones Stevedoring argues that Matulic is not entitled to interest because he refused to accept its longstanding tender of benefits but it has not cited a single case in which a court has refused to award interest. Here, the employer retained the principal amounts of the payments to which Matulic was entitled and enjoyed the unrestricted use of those funds. Accordingly, it suffers no detriment from the requirement that it now pay interest on them. We reverse the ALJ’s denial of interest and remand for a determination of when the payments became due and a determination of the total interest accrued. TV. Attorney’s Fees Jones Stevedoring argues that Matulie is not entitled to attorney’s fees and costs pursuant to 33 U.S.C. § 928(b) because it agreed in advance to be bound by the June" }, { "docid": "17117384", "title": "", "text": "the Board affirmed the AU’s decision in all respects except the AU’s refusal to credit Vanover’s state worker’s compensation settlement against the amount owed by Foundation. The Board denied Foundation’s petition for reconsideration on June 26, 1990, and Foundation filed a petition for review with this court on July 30, 1990. We have jurisdiction over this timely appeal of the Board’s decision under 33 U.S.C. § 921(c). II Foundation raises three issues on appeal. First, it objects to being held liable in totality for Vanover’s disability when Vanover was only employed by Foundation for the last six months of his working life. Second, it contends that the AU’s direction that interest be paid if Foundation were late in paying the compensation owed to Vanover is improper. Third, it urges that a credit against the amount it owes Vanover be allowed for the award Vanover received under the Black Lung Act. We address these argumente in turn. A Foundation’s liability under the Act turns on the last employer rule. As first announced in Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955), and subsequently applied by this court on many occasions, see, e.g., Todd Pacific Shipyards v. Director, OWCP (Picinich), 914 F.2d 1317, 1319 (9th Cir.1990); Kelaita v. Director, OWCP, 799 F.2d 1308, 1311 (9th Cir.1986); Todd Shipyards v. Black, 717 F.2d 1280, 1284 (9th Cir.1983), cert. denied, 466 U.S. 937, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984), the rule generally holds the claimant’s last employer liable for all of the compensation due the claimant, even though prior employers of the claimant may have contributed to the claimant’s disability. This rule serves to avoid the difficulties and delays connected with trying to apportion liability among several employers, and works to apportion liability in a roughly equitable manner, since “ ‘all employers will be the last employer a proportionate share of the time.’ ” General Ship Service v. Director, OWCP, 938 F.2d 960, 962 (9th Cir.1991), (quoting Black, 717 F.2d at 1285). In Kelaita this court recognized that" }, { "docid": "9334594", "title": "", "text": "OPINION DAVID R. THOMPSON, Circuit Judge: This appeal arises under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (“the Act”). On June 4, 1984, Mehmet Sekin, an employee of Lockheed Shipbuilding Company (“Lockheed”) who had worked for Lockheed since at least 1977, experienced extreme pain in his back radiating down into his right leg while fitting steel I-Beams into a deck frame with a 16-pound hammer. The administrative law judge (“AD”) found that Sekin was disabled by this injury, but granted Lockheed relief under section 8(f) of the Act. The Benefits Review Board (“Board”) reversed the AD’s section 8(f) limitation. Lockheed appeals. We reverse the Board’s decision. Section 8(f) of the Act limits, in certain instances, the liability of an employer for disability payments under the Act. 33 U.S.C. § 908(f)(1). “By so limiting an employer’s liability, Congress wished to facilitate and encourage the hiring of partially disabled people.” Todd Pac. Shipyards v. Director, OWCP, 913 F.2d 1426, 1429 (9th Cir.1990); see also Container Stevedoring Co. v. Director, OWCP, 935 F.2d 1544, 1553 n. 2 (9th Cir.1991) (concurring opinion). Congress sought to ensure that employers would not hesitate to hire a partially disabled person out of fear of increasing their liability in the event that a work-related injury, combined with a preexisting partial disability, resulted in a total disability. Todd Pac. Shipyards, 913 F.2d at 1429. To be entitled to 8(f) relief, the employer must establish (1) that the employee had an existing permanent partial disability prior to the employment injury; (2) that the disability was manifest to the employer prior to the employment injury; and (3) that the current disability is not due solely to the most recent injury. Id. Although the AD found that Lockheed had met all three of these criteria, the Board held that there was no substantial evidence for the AD to find that Sekin had an existing permanent partial disability pri- or to the 1984 injury. The Board reviews the AD’s decisions to determine whether factual findings are supported by “substantial evidence” and to correct any errors of law." }, { "docid": "21016012", "title": "", "text": "of Evidence 201. First, the ALJ’s discussion of regulations promulgated by the Social Security Administration in regard to its disability assessments was merely an illustration of the valid point that a variety of factors relevant in assessing the vocational potential of an individual had not been taken into consideration by the vocational expert in this case. The ALJ took no “judicial notice” of any fact as contemplated by Federal Rule of Evidence 201 which would require prior notice and an opportunity to submit rebuttal evidence. Second, the ALJ’s determination that the evidence offered did not sustain the Employer’s burden of proving that suitable alternative employment existed for Hinton is a rational conclusion based on the evidence presented. The ALJ was not satisfied that the vocational expert’s opinion adequately took into consideration all of the circumstances that affected Hinton’s employability, and therefore rejected the expert’s conclusion. The ALJ’s factual determination concerning the availability of suitable alternative employment is supported by substantial evidence in the record as a whole. In sum, we find no merit in the Employer’s contention that the ALJ erred in concluding that Hinton was permanently and totally disabled and that no suitable alternative employment was available for him. C. Did Hinton’s prior injury increase his disability under § 8(f) ? Section 8(f) of the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 908(f), was enacted to alleviate potential employment discrimination against handicapped employees. American Bridge Div., U.S. Steel Corp. v. Director, OWCP, 679 F.2d 81, 82 n. 3 (5th Cir.1982). Under the Act’s aggravation rule, if an employment injury aggravates, accelerates, exacerbates, contributes to, or combines with, a previous infirmity, disease or underlying condition, the employer is liable for compensation for, not just the disability resulting from the employment injury, but the employee’s total resulting disability. Strachen Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.1986). Where certain conditions are met, § 8(f) limits an employer’s compensation liability, with any additional compensation being paid from the special fund established by § 44 of the Act. 33 U.S.C. § 944. Section 8(f)(3) provides that any request for" }, { "docid": "9585102", "title": "", "text": "PER CURIAM: Petitioners Sealand Terminals, Inc., and its bondholder, Utica Mutual Insurance Company (collectively “Sealand”), petition for review of the Decision and Order of the Benefits Review Board (“BRB”) dated April 8, 1993. The BRB granted relief to claimant-respondent Mario Gasparic, and denied relief to Sealand under section 8(f), 33 U.S.C. § 908(f), of the Longshore and Harbor Workers’ Compensation Act. We affirm. On February 19, 1981, Gasparic sustained injuries while working as a longshoreman for Sealand. Gasparic applied for workers’ compensation benefits, claiming that his injuries left him totally and permanently disabled. In a proceeding before an Administrative Law Judge (“ALJ”), Sealand contested the permanency of Gasparic’s disability; Sealand maintained that Gasparic’s injuries caused only temporary aggravation of his pre-exist-ing arthritic back condition. Sealand also claimed section 8(f) relief, arguing that Gas-paric suffered from three pre-existing per manent partial disabilities, specifically, two bad knees and a bad back. The ALJ ruled in Gasparie’s favor, and denied section 8(f) relief to Sealand. The BRB affirmed the ALJ’s decision in its entirety. 1. Sealand argues that the ALJ’s decision was not supported by substantial evidence, and that the ALJ’s opinion failed to adequately address, and give proper weight to, evidence favorable to Sealand. In essence, Sealand complains that the ALJ credited Gasparic’s witnesses and evidence and rejected its own. However, we are not free to re-weigh the evidence or to make determinations of credibility. See F.H. McGraw & Co. v. Lowe, 145 F.2d 886, 887-88 (2d Cir.1944); see also Ingalls Shipbuilding, Inc. v. Director, OWCP, 991 F.2d 163, 165 (5th Cir.1993) (reviewing court “typically defer[s] to the ALJ’s credibility choices between witnesses and evidence”). The scope of our review is limited: “We will only consider whether the BRB made any errors of law and whether the ALJ’s findings of fact, in light of the entire record, are supported by substantial evidence.” Crawford v. Director, OWCP, 932 F.2d 152, 154 (2d Cir.1991). See O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895 (1965); Potenza v. United Terminals, Inc., 524 F.2d 1136, 1137" }, { "docid": "23632753", "title": "", "text": "SCHWARZER, Senior District Judge. General Construction Co. and Liberty Northwest Insurance Corp. (General Construction), with amicus Longshore Claims Association (LCA), petition for review of the determination of the Benefits Review Board (BRB) that claimant Robert Castro is entitled to total disability compensation under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1994) (LHWCA), during his period of participation in a vocational rehabilitation program approved by the Office of Workers’ Compensation Programs (OWCP). General Construction also claims that the method the administrative law judge (ALJ) used to calculate Castro’s average weekly wage was incorrect and that the OWCP violated General Construction’s procedural rights under the Administrative Procedure Act (APA) and the Due Process Clause of the federal Constitution. We deny the petition for review. The BRB appropriately affirmed the ALJ’s award under the LHWCA, and the ALJ’s wage calculation was correct under Ninth Circuit law. The BRB also correctly concluded that the OWCP’s failure to grant General Construction a hearing before approving Castro’s rehabilitation program did not violate General Construction’s procedural or due process rights. STANDARD OF REVIEW Under the LHWCA, we review BRB decisions “for errors of law and for adherence to the substantial evidence standard.” See Alcala v. Dir., OWCP, 141 F.3d 942, 944 (9th Cir.1998). The BRB must accept the ALJ’s factual findings if they are supported by substantial evidence. 33 U.S.C. § 921(b)(3); see also Lockheed Shipbuilding v. Dir., OWCP, 951 F.2d 1143, 1144 (9th Cir.1991). “Like the [BRB], this court cannot substitute its views for the ALJ’s views.” Container Stevedoring Co. v. Dir., OWCP, 935 F.2d 1544, 1546 (9th Cir.1991). On questions of law, including interpretations of the LHWCA, we exercise de novo review. Gilliland v. E.J. Bartells Co., Inc., 270 F.3d 1259, 1261 (9th Cir.2001). We need not defer to the BRB’s construction of the LHWCA, but we “must ... respect the [BRB’s] interpretation of the statute where such interpretation is reasonable and reflects the policy underlying the statute.” Id. (quoting McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.1990)). We also “accord considerable weight to the construction of the statute" }, { "docid": "23248356", "title": "", "text": "of and in the course of employment.” 33 U.S.C. §§ 907(a), 902(2) (emphasis added). However, in determining what medical expenses are compensable under the LHWCA, several circuits, including the Sixth Circuit, follow the aggravation rule — a general workers’ compensation doctrine providing that “when an ‘employment injury aggravates, accelerates, or combines with a preexisting impairment to produce a disability greater than that which would have resulted from the employment injury alone, the entire resulting disability is compensable.’ ” Morehead Marine Servs., Inc. v. Washnock, 135 F.3d 366, 371 (6th Cir.1998) (quoting Port of Portland v. Director, OWCP, 932 F.2d 836, 839 (9th Cir.1991)) (emphasis added); see also Director, OWCP v. Bath Iron Works Corp., 129 F.3d 45, 50 (1st Cir.1997); Director, OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 306 (5th Cir.1997); Director, OWCP v. Luccitelli, 964 F.2d 1303, 1304 (2d Cir.1992); SAIF Corp./Oregon Ship v. Johnson, 908 F.2d 1434, 1441 (9th Cir.1990) (explaining that under the aggravation doctrine, an employer must fully compensate an employee whose employment-related injury aggravates a preexisting injury in the sense that it combines with the preexisting injury to produce disability). The logic behind the aggravation rule is akin to the common law doctrine that a tortfeasor takes his victim as he finds him. See Ingalls Shipbuilding, 125 F.3d at 306. Thus, an LHWCA claimant whose respiratory disability results partially from employment-related asbestos exposure and partially from unrelated obstructive pulmonary conditions caused by obesity and smoking would nevertheless be compensated for the treatment of all of these conditions. See, e.g., Bath Iron Works, 129 F.3d at 53; SAIF Corp., 908 F.2d at 1441. In light of this background, the Agency’s interpretation of 20 C.F.R. § 725.701(b) is neither extraordinary nor novel as a matter of policy judgment. In fact, the Agency’s interpretation seems perfectly consistent with other established principles under the LHWCA like the aggravation rule and long-held doctrines of workers’ compensation law. In sum, the Agency’s interpretation of 20 C.F.R. § 725.701(b) is neither irrational nor unreasonable. Moreover, since “[tjhere is simply no reason to suspect that the interpretation does not reflect the [Ajgency’s" }, { "docid": "23248355", "title": "", "text": "for the treatment of pulmonary conditions unrelated to pneu-moconiosis .even though they contribute, along with the pneumoconiosis, to the claimant’s total pulmonary disability would be contrary to the LHWCA which intends to render employers liable only for employment-related injuries. Petitioners’ Reply Br. at 7-8. I disagree that under the LHWCA employers can only be held responsible for medical treatment of conditions/injuries that are themselves employment-related. The Sixth Circuit’s recent adoption of the aggravation rule with respect to pre-existing conditions serves as a good example of a situation where an employer is held responsible for treatment of conditions that are employment-related only to the extent that the condition combines with an employment-related injury and contributes to producing disability. The Company is correct that under the LHWCA an employer is obligated to “furnish such medical, surgical, and other attendance or treatment ... for such period as the nature of the injury or the process of recovery may require” and that the term “injury” is defined by the statute to mean an “accidental injury or death arising out of and in the course of employment.” 33 U.S.C. §§ 907(a), 902(2) (emphasis added). However, in determining what medical expenses are compensable under the LHWCA, several circuits, including the Sixth Circuit, follow the aggravation rule — a general workers’ compensation doctrine providing that “when an ‘employment injury aggravates, accelerates, or combines with a preexisting impairment to produce a disability greater than that which would have resulted from the employment injury alone, the entire resulting disability is compensable.’ ” Morehead Marine Servs., Inc. v. Washnock, 135 F.3d 366, 371 (6th Cir.1998) (quoting Port of Portland v. Director, OWCP, 932 F.2d 836, 839 (9th Cir.1991)) (emphasis added); see also Director, OWCP v. Bath Iron Works Corp., 129 F.3d 45, 50 (1st Cir.1997); Director, OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 306 (5th Cir.1997); Director, OWCP v. Luccitelli, 964 F.2d 1303, 1304 (2d Cir.1992); SAIF Corp./Oregon Ship v. Johnson, 908 F.2d 1434, 1441 (9th Cir.1990) (explaining that under the aggravation doctrine, an employer must fully compensate an employee whose employment-related injury aggravates a preexisting injury in the" }, { "docid": "9334596", "title": "", "text": "33 U.S.C. § 921(b)(3). We conduct an independent review. The AD’s findings must be ac cepted when they are supported by substantial evidence. Container Stevedoring, 935 F.2d at 1546. Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir.1989). In reaching his decision, the AU relied upon the “cautious employer” test to support his finding of permanent partial disability. Under this test, an employer may establish an employee’s permanent partial disability predating the most recent injury by showing that the employee had such a serious physical disability in fact that a cautious employer would have been motivated to discharge the handicapped employee because of a greatly increased risk of employment-related accident and compensation liability. C & P Tel. Co. v. Director, OWCP, 564 F.2d 503, 513 (D.C.Cir.1977). We recently reaffirmed that satisfying the “cautious employer” test is one way a party may demonstrate an employee’s permanent partial disability. Todd Pac. Shipyards, 913 F.2d at 1430. Here, the evidence showed that Sekin strained his back in 1977, resulting in three weeks off work (Exhibit R-I), and that he reinjured his back in 1983 resulting in light duty status for a short period of time (Exhibit R-L-2). The mere fact that an employee previously sustained a back injury does not, standing alone, establish that he had a preexisting permanent partial disability. CNA Ins. Co. v. Legrow, 935 F.2d 430, 436 (1st Cir.1991); Director, OWCP v. Campbell Indus., 678 F.2d 836, 840 (9th Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983), disapproved on other grounds, Director, OWCP v. Cargill, Inc., 709 F.2d 616 (9th Cir.1983) (en banc). Other evidence in the record before us, however, supports the AU’s finding of permanent partial disability predating the 1984 injury. The Orthopaedic Panel Consultants’" }, { "docid": "23429427", "title": "", "text": "two-injury situation, the ALJ reasoned that Kelaita’s disability resulted from continued use of his arm. Each flare-up of pain represented cumulative trauma and aggravated the underlying injury. Because Ke-laita suffered flare-ups at both Triple A and General, each incident represented an aggravation of the underlying injury and was therefore itself a compensible injury. Because General was the employer during the most recent aggravation, the AU reasoned it should be held liable for the entire disability. The AU’s analysis is supported by substantial evidence and caselaw. Application of the rule as applied to two-injury cases is reasonable. See Crawford v. Equitable Shipyards, 11 BRBS 646 (1979); Mulligan, 12 BRBS at 101; Lindsay v. Owens-Cornings Fiberglass Sales, 13 BRBS 922, 927 (1981) (Board refused to extend last responsible employer rule as formulated in occupational disease cases to an orthopedic impairment); Todd Shipyards Corporation v. Black, 717 F.2d 1280 (9th Cir.1983) (pulmonary disease-occupational disease); Sun Shipbuilding & Dry Dock Corp. v. McCabe, 593 F.2d 234 (3d Cir.1979) (occupational disease-hearing loss); Cordero, 580 F.2d at 1331 (pulmonary disease-occupational disease). Finally, Kelaita argues the AU’s finding that working conditions at General aggravated Kelaita’s injury is not supported by substantial evidence. Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corporation v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). In his decision on remand, the AU listed several evidentiary factors that led him to conclude that working conditions at General could have aggravated or contributed to Kelaita’s shoulder injury. The work at General involved activities similar to those performed at Triple A, Kelaita’s continued work at General had a negative impact on his pain, some of Kelaita’s pain flare-ups at General were related to his work. From all the evidence, the AU reasonably inferred that the work at General was not significantly different from the work at Triple A, that Kelaita was required to use his right arm in his work at General, and that the work at General could have aggravated" }, { "docid": "12610465", "title": "", "text": "decertification decision came only after the ALJ discussed Dr. Scaffs report and testimony in detail and supplied many reasons for finding Dr. Scaff not credible. Hawaii Stevedores does not challenge the ALJ’s credibility finding, so any error in decertifying Dr. Scaff was harmless; the ALJ had already rejected his opinion on grounds supported by substantial evidence. See, e.g., Am. Stevedoring Ltd. v. Marinelli, 248 F.3d 54, 65-66 (2d Cir.2001) (concluding that even if it was error to discredit a statement by the employer’s expert, the error was harmless because the ALJ discounted the expert’s opinion for several other reasons). VI Hawaii Stevedores argues, fourth, that the ALJ erred in determining that Hawaii Stevedores did not submit substantial evidence that Ogawa’s stroke did not arise in the course of his employment. The Longshore Act creates a presumption that a disabling injury suffered by a maritime worker is work-related and thus compensable. 33 U.S.C. § 920(a). An employer is liable for employment conditions that cause an injury or aggravate or accelerate a pre-existing condition under the “aggravation rule,” which dictates that “the employer takes the employee as he finds him.” SAIF Corp./Or. Ship v. Johnson, 908 F.2d 1434, 1441 (9th Cir.1990). Although the burden of persuasion remains on the disability claimant throughout the administrative process, see Dir., Office of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 280-81, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), the burden of production shifts in the course of determining whether a claimant’s injury is work-related. The statutory presumption may be invoked by the claimant upon a prima facie showing that (1) he or she suffered a harm, and (2) a workplace condition could have caused, aggravated, or accelerated the harm. See Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 959 (9th Cir.1998); Amerada Hess Corp. v. Dir., Office of Worker’s Comp. Programs, 543 F.3d 755, 761 (5th Cir.2008). If the claimant successfully invokes the presumption at the first step, the employer may rebut the presumption at the second step by presenting substantial evidence that is “specific and comprehensive enough to sever the potential connection" }, { "docid": "21016013", "title": "", "text": "Employer’s contention that the ALJ erred in concluding that Hinton was permanently and totally disabled and that no suitable alternative employment was available for him. C. Did Hinton’s prior injury increase his disability under § 8(f) ? Section 8(f) of the Longshore and Harbor Workers Compensation Act, 33 U.S.C. § 908(f), was enacted to alleviate potential employment discrimination against handicapped employees. American Bridge Div., U.S. Steel Corp. v. Director, OWCP, 679 F.2d 81, 82 n. 3 (5th Cir.1982). Under the Act’s aggravation rule, if an employment injury aggravates, accelerates, exacerbates, contributes to, or combines with, a previous infirmity, disease or underlying condition, the employer is liable for compensation for, not just the disability resulting from the employment injury, but the employee’s total resulting disability. Strachen Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.1986). Where certain conditions are met, § 8(f) limits an employer’s compensation liability, with any additional compensation being paid from the special fund established by § 44 of the Act. 33 U.S.C. § 944. Section 8(f)(3) provides that any request for § 8(f) relief must be presented to the District Director; that failure to make such request shall be an absolute defense to special fund liability; and that the failure to timely file such a request will be excused if “the employer could not have reasonably anticipated the liability of the special fund prior to the issuance of a compensation order.” 33 U.S.C. § 908(f)(3). Prior to 1984, § 8© contained no explicit restrictions on the time for raising a claim for relief under its provisions. See Pub. L. No. 98-426, § 8(e)(5), 98 Stat. 1646 (amending 33 U.S.C. § 908(f) to add paragraph (f)(3)). In a case decided under the pre-1984 version of § 8(f), we nonetheless construed it as requiring the claim for special fund apportionment to be raised before or at the initial hearing, and precluding an employer from raising a § 8(f) claim for the first time on review of the ALJ’s award of total disability benefits. American Bridge, 679 F.2d at 83. Under the pre-1984 version of the law, the Director" }, { "docid": "23632754", "title": "", "text": "process rights. STANDARD OF REVIEW Under the LHWCA, we review BRB decisions “for errors of law and for adherence to the substantial evidence standard.” See Alcala v. Dir., OWCP, 141 F.3d 942, 944 (9th Cir.1998). The BRB must accept the ALJ’s factual findings if they are supported by substantial evidence. 33 U.S.C. § 921(b)(3); see also Lockheed Shipbuilding v. Dir., OWCP, 951 F.2d 1143, 1144 (9th Cir.1991). “Like the [BRB], this court cannot substitute its views for the ALJ’s views.” Container Stevedoring Co. v. Dir., OWCP, 935 F.2d 1544, 1546 (9th Cir.1991). On questions of law, including interpretations of the LHWCA, we exercise de novo review. Gilliland v. E.J. Bartells Co., Inc., 270 F.3d 1259, 1261 (9th Cir.2001). We need not defer to the BRB’s construction of the LHWCA, but we “must ... respect the [BRB’s] interpretation of the statute where such interpretation is reasonable and reflects the policy underlying the statute.” Id. (quoting McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.1990)). We also “accord considerable weight to the construction of the statute urged by the Director of the [OWCP] as [s]he is charged with administering” the LHWCA. Matson Terminals, Inc. v. Berg, 279 F.3d 694, 696 (9th Cir.2002) (quoting Force v. Dir., OWCP, 938 F.2d 981, 983 (9th Cir.1991) (internal quotation marks omitted)). “We will defer to the Director’s view unless it constitutes an unreasonable reading of the statute or is contrary to legislative intent.” Id. (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). BACKGROUND I. CASTRO’S EMPLOYMENT, INJURY, AND REHABILITATION PROGRAM Claimant Robert Castro worked as a carpenter and pile driver from 1973 until he was disabled due to his injury in 1998. He began work as a pile driver for General Construction in 1998. On November 20, 1998, Castro slipped and fell on a crane step, tearing the anterior cruciate ligament in his right knee. After three surgeries, Castro was released to return to light duty work in August 2000. Castro attempted to return to work at General Construction, but the job he" }, { "docid": "17117385", "title": "", "text": "v. Cardillo, 225 F.2d 137, 145 (2d Cir.), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955), and subsequently applied by this court on many occasions, see, e.g., Todd Pacific Shipyards v. Director, OWCP (Picinich), 914 F.2d 1317, 1319 (9th Cir.1990); Kelaita v. Director, OWCP, 799 F.2d 1308, 1311 (9th Cir.1986); Todd Shipyards v. Black, 717 F.2d 1280, 1284 (9th Cir.1983), cert. denied, 466 U.S. 937, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984), the rule generally holds the claimant’s last employer liable for all of the compensation due the claimant, even though prior employers of the claimant may have contributed to the claimant’s disability. This rule serves to avoid the difficulties and delays connected with trying to apportion liability among several employers, and works to apportion liability in a roughly equitable manner, since “ ‘all employers will be the last employer a proportionate share of the time.’ ” General Ship Service v. Director, OWCP, 938 F.2d 960, 962 (9th Cir.1991), (quoting Black, 717 F.2d at 1285). In Kelaita this court recognized that the last employer rule, as announced in Cardil-lo, had sprouted a branch. We observed that the traditional last employer rule was still applied in occupational disease cases, but that a new rule had developed in injury cases. See Kelaita, 799 F.2d at 1311. Since both rules were designed to determine whether a subsequent employer bore all the liability for disabilities caused by more than one employer, in Kelaita we said that there was still one rule, the last employer rule, that was “applied differently depending on whether a claimant’s disability is characterized as an occupational disease or a two-injury case.” Id. Subsequent cases have not been entirely clear on this distinction. Courts addressing occupational disease claims have directly applied the occupational disease branch of the last employer rule without finding it necessary to mention that another branch of the last employer rule exists governing injury cases. See Picinich, 914 F.2d at 1319; General Ship Service, 938 F.2d at 962. Others have described the two-injury branch as the “aggravation rule.” See Port of Portland v. Director," } ]

[ { "docid": "22635409", "title": "", "text": "ease may be, and to apply any appropriate civil penalties under section 1319(d) of this title.” For example, the Solid Waste Disposal Act was amended in 1984 to authorize citizen suits against any “past or present” generator, transporter, owner, or operator of a treatment, storage, or disposal facility “who has contributed or who is contributing” to the “past or present” handling, storage, treatment, transportation, or disposal of certain hazardous wastes. 42 U. S. C. § 6972(a)(1)(B) (1982 ed., Supp. III). Prior to 1984, the Solid Waste Disposal Act contained language identical to that of § 505(a) of the Clean Water Act, authorizing citizen suits against any person “alleged to be in violation” of waste disposal permits or standards. 42 U. S. C. § 6972(a)(1). Even more on point, the most recent Clean Water Act amendments permit EPA to assess administrative penalties without judicial process on any person who “has violated” the provisions of the Act. Water Quality Act of 1987, § 314, Pub. L. 100-4, 101 Stat. 46. The notice provisions specifically provide that citizen suits are barred only if the Administrator or State has commenced an action “io require compliance.” 33 U. S. C. § 1365(b)(1)(B) (emphasis added). This language supports our conclusion that the precluded citizen suit is also an action for compliance, rather than an action solely for civil penalties for past, nonrecurring violations. Respondents also seek to rely on the legislative history of the 1987 amendments to the Act, which, inter alia, gave the Administrator authority to assess civil penalties for past violations without judicial enforcement proceedings. Water Quality Act of 1987, § 314, Pub. L. 100-4, 101 Stat. 46. Respondents point to provisions in the 1987 Act and statements in its legislative history to the effect that an administrative penalty action for violation of one effluent limitation does not bar a citizen suit for a past violation of another effluent limitation, even if the two violations resulted from the same discharge. Brief for Respondents 17-18, and n. 11. Respondents contend that this evidence demonstrates that the 99th Congress viewed the Act as permitting citizen suits" } ]

[ { "docid": "23177438", "title": "", "text": "that counts II and IV must be dismissed because they were filed prematurely, the city also makes more particular arguments as to why it believes that all the counts should be dismissed. 1. EPA-Authorized State Hazardous Waste Program The city claims that RCRA’s exception to the delay requirements for subchapter III actions is not applicable in Vermont because that subchapter has been superseded by Vermont’s approved Hazardous Waste Management Plan pursuant to 42 U.S.C. § 6926(b). We disagree. We note initially that plaintiffs’ complaint contains two counts that allege hazardous waste violations — counts I and III. Count I was brought pursuant to subsection A of the citizen suit provision, 42 U.S.C. § 6972(a)(1), and count III was brought pursuant to subsection B. Within the general citizen suit provision of RCRA (§ 6972(a)(1)), two separate subsections specify two different types of actions that may be brought. Subsection A primarily addresses violations of permits, standards, regulations, and the like. Subsection B allows causes of action against those whose activities “ha[ve] contributed or * * * [are] contributing to the past or present handling, storage, treatment, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment”. Pursuant to § 6926(b), an EPA-authorized state hazardous waste program, like that in Vermont, can supersede the permit and notification requirements of subchap-ter III of RCRA. However, a state’s own hazardous waste program affects only those actions brought pursuant to subsection A, i.e., those that depend upon the specific permit and notification requirements in subchapter III. Subsection B, on the other hand, is more general, and allows a direct cause of action against those whose activities “may present an imminent and substantial endangerment to health or the environment”. Thus, a subsection B suit does not depend on any specific sub- chapter III provision, nor is it superseded by a state program. In this case, the district court did find that the federal permit and notification requirements of subchapter III of RCRA were superseded by the EPA-authorized state hazardous waste program, and thus, that a direct" }, { "docid": "939635", "title": "", "text": "migration of these substances into the groundwater, see Appendix, Vol. IX, BIW’s Response to Plaintiffs Request for Admissions ¶¶ 6, 32-33,1 cannot say that the site currently presents no threat to the environment or public safety. See Gache v. Town of Harrison, 813 F.Supp. 1037, 1041 (S.D.N.Y.1993). Accordingly, this issue must be reserved for trial. B. Count II (RCRA) In Count II, the plaintiffs claim that the site has failed to comply with the closure and post-closure requirements of RCRA, 42 U.S.C. § 6972(a)(1)(A). Under the citizen suit provisions of RCRA, a private plaintiff may assert a civil claim against “any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter.” 42 U.S.C. § 6972(a)(1)(A). The plaintiffs have moved for summary judgment on the grounds that BIW has violated the federal closure and post-closure standards for hazardous waste disposal sites. As with Count I, BIW has moved for summary judgment on the procedural grounds that the plaintiffs have failed to comply with the applicable notice provisions and the state’s administrative actions bar this claim. BIW has also moved for summary judgment on Count II on the substantive ground that the applicable provisions of RCRA it allegedly violated have been superseded by Maine’s EPA-authorized hazardous waste management program. Addressing the procedural arguments first, BIW asserts that Count II is precluded by the plaintiffs’ failure to comply with the prefiling notice requirements of 42 U.S.C. § 6972(b)(1)(A) and the state’s pursuit of an administrative action to clean-up the site. The prefiling notice provisions pertinent to Count II require only 60 days notice to the EPA Administrator, the state and the alleged violator, see 42 U.S.C. § 6972(b)(1)(A), and, as already discussed with respect to Count I, this timing element has been satisfied. As for the preclusion clause pertinent to Count II, a citizen action under section 6972(a)(1)(A) is precluded only if the state “has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to" }, { "docid": "1707313", "title": "", "text": "lieu of the federal program pursuant to 42 U.S.C. § 6926(b). Without an alleged violation of federal law, Ashland argues that plaintiffs citizen suit claim fails for lack of subject matter jurisdiction. Plaintiff agrees that Ohio received authorization to carry out its own hazardous waste program effective June 30, 1989. However, plaintiff argues that although Ohio’s program operates in lieu of RCRA, Ohio’s program has not received authorization to operate in lieu of the entire 1984 Hazardous and Solid Waste Amendments (HSWA), citing 54 Fed. Reg. 27173. Plaintiff argues to the extent its claims come within HSWA provisions not covered by the Ohio hazardous waste program its claims arise under federal law. In plaintiffs surreply, plaintiff lists forty-eight regulations implementing HSWA and enacted pursuant to the statutory provisions on which count 3 is based which plaintiff argues are still enforceable in Ohio as the state has not received authorization to implement its own plan in these areas. Plaintiff also argues that several alleged violations predate the authorization of the Ohio program and therefore are cognizable under federal law. Finally, plaintiff argues that citizen suits may be brought even if there exists a state authorized plan citing Lutz v. Chromatex, Inc., 725 F.Supp. 258, 261 (N.D.Pa.1989). Title 42, U.S.C. § 6972(a)(1)(A) provides: Citizens suits (a) In general Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf— (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter. The courts addressing whether a citizen suit is available in an authorized state have come to conflicting results. Several courts have held that citizen suits under subsection A are not available in authorized states because the state program supersedes the RCRA provisions required for a citizen suit under subsection (A). Dague v. City of Burlington, 935 F.2d 1343, 1353" }, { "docid": "939638", "title": "", "text": "834 F.Supp. at 978-79; Lutz v. Chromatex, Inc., 718 F.Supp. 413, 425 (M.D.Pa.1989) (Lutz I). Effective May 20, 1988, Maine received final EPA authorization under 42 U.S.C. § 6926(b) to operate its state hazardous waste management program in lieu of the RCRA hazardous waste program, subject to the limitations imposed by the Hazardous and Solid Waste Amendments of 1984 (“HSWA”). 53 Fed.Reg. 16264, 16266-67; see also List of C.F.R. Sections Affected, 1988, 40 C.F.R. §-271 (July 1, 1993 ed.). This authorization, having not been withdrawn, has remained in full effect since that time. See 42 U.S.C. § 6926(e) (withdrawal of authorization). In their motion for summary judgment, the plaintiffs allege violations of various federal closure and post-closure standards under 42 U.S.C. § 6925(a) and 40 C.F.R. § 264. These provisions, however, have been superseded by Maine’s EPA-authorized hazardous waste management program. See 40 C.F.R. § 264.1(f). The plaintiffs have not identified any violation of the provisions of RCRA, such as those enacted under HSWA, that would have survived Maine’s receipt of final authorization to operate its own program. See Ashland Oil, 834 F.Supp. at 979-80; Lutz I, 718 F.Supp. at 426. Accordingly, because those provisions of RCRA allegedly violated by BIW have been superseded by Maine’s program, no direct action lies under section 6972(a)(1)(A) for this court to remedy an ongoing or recurring violation of those provisions. Past violations of RCRA, predating Maine’s receipt of final EPA authorization, as alleged by the plaintiffs, are not cognizable under section- 6972(a)(1)(A). This is not the end of the matter, however. According to the two courts that have squarely addressed the issue, a citizen suit under section 6972(a)(1)(A) is still available for violations of a state authorized program, since the state program, in having received EPA authorization under RCRA, “has become effective” pursuant to RCRA, as required by section 6972(a)(1)(A). Sierra Club v. Chemical Handling Corp., 824 F.Supp. 195, 197 (D.Colo.1993); Lutz v. Chromatex, Inc., 725 F.Supp. 258, 261 (M.D.Pa.1989) (Lutz II); see also Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 964 (7th Cir.1994); Sierra Club v. Larson, 2" }, { "docid": "939632", "title": "", "text": "the complaint was served upon the Attorney General and the EPA Administrator in May 1994. See Appendix, Vol. X, att. A, C. The statutory provision requiring service on the Attorney General and the EPA Administrator does not specify a time limitation for service. Petropoulos v. Columbia Gas of Ohio, Inc., 840 F.Supp. 511, 516 (S.D.Ohio 1993). I also find that the plaintiffs’ citizen suit is not precluded by the state’s prosecution of its own action to restrain or abate the conditions which may present the alleged endangerment, as mandated by the preclusion provision of 42 U.S.C. § 6972(b)(2)(C). Under that provision, no citizen suit may be commenced under section 6972(a)(1)(B) if the state is engaged in one of three specific types of remedial action. The record before me does not establish that Maine is currently engaged in pursuing any of those three enumerated forms of remediation. The First Circuit case cited by BIW, North & South Rivers Watershed Ass’n. v. Town of Scituate, 949 F.2d 552 (1st Cir.1991), is inapposite on this issue, since it involves an interpretation of a dissimilar preclusion clause found in the Clean Water Act dealing with a pending state administrative action comparable to the administrative penalties subsection of that act. As for the merits of Count I, to prevail the plaintiffs must show that the waste disposed and stored at the site, waste that does constitute solid waste under RCRA, “may present an imminent and substantial endangerment to health or the environment.” To prove that an imminent and substantial endangerment may exist, the plaintiffs need not prove actual harm; they need only show a risk of threatened or potential harm. Dague, 935 F.2d at 1355-56. In addition, although RCRA as a whole is basically prospective in approach, designed to prevent improper disposal of waste in the future, a citizen suit under section 6972(a)(1)(B) does reach past conduct involving the disposal of solid waste, but only to the extent that such past conduct continues to produce a present endangerment. Connecticut Coastal Fishermen’s Ass’n. v. Remington Arms Co., 989 F.2d 1305, 1316 (2d Cir.1993); Price v. United" }, { "docid": "1707321", "title": "", "text": "either present or future harm. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1159 (9th Cir.1989); Lutz v. Chromatex, Inc., 718 F.Supp. 413, 424 (M.D.Pa.1989); McClellan Ecological Seepage v. Wemberger, 707 F.Supp. 1182, 1187 (E.D.Cal.1988). This interpretation is based on the Supreme Court’s conclusion that the citizen suit provision found in the Clean Water Act, which is almost identical to the RCRA citizen suit provision, addresses only conduct alleged to be continuous or intermittent. Gwalthey of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). In fact, the Supreme Court specifically identified the citizen suit provision of RCRA as one of several environmental statutes that authorize only prospective relief. Id. at 57 n. 2, 108 S.Ct. at 380 n. 2. Therefore, when a complaint alleges only past harm, the court is found to be without jurisdiction and dismissal is appropriate. Ascon, 866 F.2d at 1159. In this case the plaintiff is arguing that past harm, that is conduct prior to 1989, can serve the basis of federal jurisdiction. However, as RCRA’s citizen suit provision requires present or future harm, allegations of past harm cannot create federal jurisdiction under RCRA. Based on the above, the Court finds that Heath has not established that this Court has subject matter jurisdiction over count 3. However, the Court will proceed to consider Ashland’s further argument that count 3 is barred by virtue of the action brought by the state of Ohio against the defendants in the Common Pleas Court of Licking County, Ohio. 2. State Litigation Ashland argues that the consent order entered into by Ohio and the defendants in the state action addressing the identical issues as those addressed by count 3 bars Heath’s action pursuant to 42 U.S.C. § 6972(b)(1)(B). Heath responds that 42 U.S.C. § 6972(b)(1)(B) requires diligence by the state and that diligence requires a finding of fact and, therefore, is not appropriate on a motion to dismiss. 42 U.S.C. § 6972(b)(1) provides: (1) No action may be commenced under subsection (a)(1)(A) of this section— (A) prior to 60 days" }, { "docid": "18630485", "title": "", "text": "the plaintiffs shall not be permitted to relitigate the issuance of the permits to defendant Gibraltar; on the contrary, they may only challenge the operation of the facility when, in violation of its permit, it operates in a manner that endangers health or the environment. E. EPA-Authorized State-Operated Hazardous Waste Program Defendant Gibraltar claims that “RCRA may not be used to enforce EPA-authorized state hazardous waste programs in suits under 42 U.S.C. § 6972(a)(1)(A).” Defendant Gibraltar’s Motion for Judgment on the Pleadings, 8. The validity of defendant Gibraltar’s argument depends on section 6972(a)(1)(A), which states, in relevant part, that “any person may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this Act.” 42 U.S.C. § 6972(a)(1)(A) (emphasis added). Section 6972(a)(1)(A) suggests that the primary ques tion is whether Texas’ hazardous waste program became effective pursuant to RCRA. Sierra Club v. Chemical Handling Corp., 824 F.Supp. 195, 197 (D.Colo.1993); Lutz v. Chromatex, 725 F.Supp. 258, 261-62 (M.D.Pa.1989). RCRA permits the Environmental Protection Agency (“EPA”) to authorize individual states to administer hazardous waste programs “in lieu” of the federal program as long as the two programs are equivalent. 42 U.S.C. 6926(b); Sierra Club, 824 F.Supp. at 197. In such delegated programs, states are authorized to issue and enforce permits for the storage, treatment, or disposal of hazardous waste. Sierra Club, 824 F.Supp. at 197. The EPA has authorized Texas to administer its hazardous waste program in lieu of the federal program, in accordance with section 6929(b). 49 Fed.Reg. 48,300 (Dec. 12, 1984) (to be codified at 40 C.F.R. §§ 272.2200— 272.2249). Because Texas’ hazardous waste program is authorized by RCRA, it became effective pursuant to RCRA. Sierra Club, 824 F.Supp. at 197; Lutz, 725 F.Supp. at 261; Acme Printing Ink Co. v. Menard, 881 F.Supp. 1237, 1237 (E.D.Wis.1995); but see Dague, 935 F.2d at 1353; City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 978-79 (S.D.Ohio 1993); Thompson v. Thomas, 680 F.Supp. 1," }, { "docid": "3529897", "title": "", "text": "status for the storage of hazardous waste; activities that are the basis of the Sierra Club’s first two claims. 6 C.C.R. 1007-3 Part 100. The EPA has authorized Colorado to administer its hazardous waste program “in lieu” of the federal program. 49 Fed.Reg. 41036 (Oct. 19, 1984). See also, 54 Fed.Reg. 20847 (May 15, 1989); 56 Fed.Reg. 21601 (May 10, 1991). I conclude that because Colorado’s hazardous waste program was authorized by RCRA, it also became “effective” pursuant to RCRA, and therefore the citizen suit provision of section 6972(a)(1)(A) applies. Lutz v. Chromatex, Inc., 725 F.Supp. 258, 261 (M.D.Pa.1989) (Lutz II); but see, Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991). The Environmental Protection Agency (EPA) has adopted this interpretation of RCRA. In granting interim and then final authorization to Texas’ hazardous waste program the EPA stated, in response to concerns regarding an absence of a citizen suit provision, that a RCRA citizen suit may be brought under section 6972 after a state has received authorization to operate its program in lieu of the federal program. Lutz, 725 F.Supp. at 261-62; 45 Fed.Reg. 85016 (Dec. 24, 1980); 49 Fed.Reg. 48300 (Dec. 12, 1984). Courts generally show great deference to interpretations of applicable statutes and regulations by the agency charged with the administration of a particular program as long as the agency’s interpretation is reasonable and consistent with the statute. See, e.g. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). This interpretation is further supported by the important role that citizens’ suits can play in the enforcement of RCRA. The EPA must classify cases in order to maximize its scarce enforcement resources. There are some violations that, by necessity, may not be pursued aggressively. However, a RCRPA violation is only “small” to one who does not live near the offending hazardous waste facility. Indeed, the instant action is a testament to Congress’ wisdom in recognizing that those who live in close proximity to hazardous waste facilities often are the most diligent enforcers of RCRA’s mandates. Under the plain language of RCRA," }, { "docid": "972856", "title": "", "text": "the court should decline to override the decision by the MPCA not to require remedial action. The court disagrees. Applying the primary jurisdiction doctrine in citizen suit actions would greatly reduce the instances in which a plaintiff could pursue a citizen suit action. The court concludes that applying the doctrine would be inconsistent with RCRA’s statutory language. As explained previously, Congress has expressly set forth those situations in which a citizen suit under section 6972(a)(1)(B) is precluded. 42 U.S.C. § 6972(b)(2). Those situations include when a plaintiff has failed to notify the EPA Administrator, the appropriate state and the alleged violator, or when the EPA Administrator or state has commenced and is diligently prosecuting a court action. Id. Other courts have rejected the doctrine as applying to citizen suit actions. See Coalition for Health Concern v. LWD, Inc., 834 F.Supp. 953, 961-62 (W.D.Ky.1993). Accordingly, the court denies Land O’Lakes’ motion for abstention on the grounds of the primary jurisdiction doctrine. Land O’Lakes also argues that Craig Lyle’s claims are properly brought in state court based on Minnesota’s authorization to enforce its laws regarding hazardous waste in lieu of RCRA Subtitle C. See Murray v. Bath Iron Works Corp., 867 F.Supp. 33, 42-43 (D.Me.1994); City of Heath v. Ash- land Oil, 834 F.Supp. 971, 980 (S.D.Ohio 1993); Thompson v. Thomas, 680 F.Supp. 1, 3 (D.D.C.1987). However, those courts which have dismissed citizen suit actions where the applicable federal requirements of RCRA have been superseded by an EPA-authorized state hazardous waste program have faced citizen suit actions brought under section 6972(a)(1)(A). For the purposes of determining the effect of an authorized state waste program, other courts do distinguish between citizen suit actions brought under section 6972(a)(1)(B). See Dague v. City of Burlington, 935 F.2d 1343, 1353 (2nd Cir. 1991), rev’d on other grounds, City of Burlington v. Dague, — U.S. —, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Clorox Co. v. Chromium Corp., 158 F.R.D. 120, 124 (N.D.Ill.1994). The court concludes that this citizen suit based on section 6972(a)(1)(B) is not superseded by a state program. 2. Burford Abstention The Burford doctrine" }, { "docid": "939639", "title": "", "text": "its own program. See Ashland Oil, 834 F.Supp. at 979-80; Lutz I, 718 F.Supp. at 426. Accordingly, because those provisions of RCRA allegedly violated by BIW have been superseded by Maine’s program, no direct action lies under section 6972(a)(1)(A) for this court to remedy an ongoing or recurring violation of those provisions. Past violations of RCRA, predating Maine’s receipt of final EPA authorization, as alleged by the plaintiffs, are not cognizable under section- 6972(a)(1)(A). This is not the end of the matter, however. According to the two courts that have squarely addressed the issue, a citizen suit under section 6972(a)(1)(A) is still available for violations of a state authorized program, since the state program, in having received EPA authorization under RCRA, “has become effective” pursuant to RCRA, as required by section 6972(a)(1)(A). Sierra Club v. Chemical Handling Corp., 824 F.Supp. 195, 197 (D.Colo.1993); Lutz v. Chromatex, Inc., 725 F.Supp. 258, 261 (M.D.Pa.1989) (Lutz II); see also Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 964 (7th Cir.1994); Sierra Club v. Larson, 2 F.3d 462, 469 (1st Cir.1993). But see Ashland Oil, 834 F.Supp. at 979 (disagreeing though not deciding the issue). I agree. Moreover, as the plaintiffs have pointed out, Maine’s EPA-authorized program has adopted and incorporated the federal closure and post-closure requirements of 40 C.F.R. § 264.310. See Me. Dep’t of Envtl. Protection Regs. 854.8(H) (March 16, 1994). Accordingly, having specifically asserted that BIW violated 40 C.F.R. § 264.310, see Memorandum in Support of Plaintiffs’ Motion for Partial Summary Judgment (Docket No. 32) at 25, the plaintiffs can pursue such a claim under 42 U.S.C. § 6972(a)(1)(A) as a violation of Maine’s RCRA-authorized program. On the merits of that precise claim, however, summary judgment is unavailable to either party. I note that the closure and post-closure requirements of 40 C.F.R. § 264.310 speak in terms of “final closure.” The plaintiffs have not made' any showing that this stage has been reached. On the other hand, I note that the eastern portion of the landfill remains uncapped, see Phase I Remedial. Investigation Report at 6-1, but that" }, { "docid": "18630487", "title": "", "text": "3 (D.D.C.1987). Therefore, the plaintiffs may enforce Texas’ hazardous waste program by bringing a citizen suit under section 6972(a)(1)(A). EPA’s interpretation of RCRA is consistent with the interpretation of Sierra Club, Lutz, and this court. During the approval process of the Texas hazardous waste program, EPA stated that a RCRA citizens suit could be maintained under section 6972 after Texas’ program was authorized. Citizen suit provisions of RCRA are found in Section 7002(a) (Subtitle G). Section 3006(b) requires that State programs be “equivalent to the federal program under this subtitle.” ... Section 3006 is in subtitle C of RCRA. EPA cannot require a State to provide for citizen suits as is contained in RCRA. However, it is EPA’s position that the citizen suit provision of RCRA is available to all citizens whether or not a state is authorized. 49 Fed.Reg. 48300, 48304 (Dec. 12, 1984) (emphasis added); see also id. at 48301 (“any person may, under Section 7002 of RCRA, commence a civil action on his own behalf’). F. State Regulation Defendant Gibraltar claims that, even if the Texas hazardous waste program is enforceable under RCRA in some circumstances, it is not in this instance, since the Texas program is broader in scope than the federal program. Additionally, defendant Gibraltar, without explanation, claims that the plaintiffs’ complaint alleges violations of state limitations and standards that are greater in scope than the CAA, and, therefore, are unenforceable under the CAA. Defendant Gibraltar’s Motion for Judgment on the Pleadings, 11-12. 1. RCRA Violations RCRA establishes a scheme whereby a state may administer its own hazardous waste program in lieu of the federal program, if such state program is equivalent to, and consistent with, the federal program. 42 U.S.C. § 6926(b). A state program may be more stringent than the federal program, and, nevertheless, be enforceable under RCRA. 40 C.F.R. § 271.1(h)(i)(l). However, if the state program has a “greater scope of coverage than required by federal law, the additional coverage is not part of the Federally approved program.” 40 C.F.R. § 271.1(h)(i)(2). Defendant Gibraltar did not adequately brief this issue. Additional research" }, { "docid": "939636", "title": "", "text": "failed to comply with the applicable notice provisions and the state’s administrative actions bar this claim. BIW has also moved for summary judgment on Count II on the substantive ground that the applicable provisions of RCRA it allegedly violated have been superseded by Maine’s EPA-authorized hazardous waste management program. Addressing the procedural arguments first, BIW asserts that Count II is precluded by the plaintiffs’ failure to comply with the prefiling notice requirements of 42 U.S.C. § 6972(b)(1)(A) and the state’s pursuit of an administrative action to clean-up the site. The prefiling notice provisions pertinent to Count II require only 60 days notice to the EPA Administrator, the state and the alleged violator, see 42 U.S.C. § 6972(b)(1)(A), and, as already discussed with respect to Count I, this timing element has been satisfied. As for the preclusion clause pertinent to Count II, a citizen action under section 6972(a)(1)(A) is precluded only if the state “has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance” with the standards allegedly violated. 42 U.S.C. § 6972(b)(1)(B). Since the record is devoid of any suggestion that Maine has commenced any court action against BIW, as required by the relevant preclusion clause, the plaintiffs’ claim under section 6972(a)(1)(A) is not barred. On the merits of Count II, as an initial matter I note that a citizen suit under section 6972(a)(1)(A), unlike a citizen suit under section 6972(a)(1)(B), is prospective only, applying to ongoing or recurring violations of RCRA requirements. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57-59, 108 S.Ct. 376, 380-82, 98 L.Ed.2d 306 (1987). Thus, the plaintiffs can prevail only if they show an ongoing or recurring violation by BIW of RCRA requirements. City of Heath v. Ashland Oil, Inc., 834 F.Supp. 971, 980 (S.D.Ohio 1993). In addition, a direct action under section 6972(a)(1)(A) is unavailable where the applicable federal requirements of RCRA have been superseded by an EPA-authorized state hazardous waste program pursuant to 42 U.S.C. § 6926(b). Dague, 935 F.2d at 1352-53; Ashland Oil," }, { "docid": "18630486", "title": "", "text": "Lutz v. Chromatex, 725 F.Supp. 258, 261-62 (M.D.Pa.1989). RCRA permits the Environmental Protection Agency (“EPA”) to authorize individual states to administer hazardous waste programs “in lieu” of the federal program as long as the two programs are equivalent. 42 U.S.C. 6926(b); Sierra Club, 824 F.Supp. at 197. In such delegated programs, states are authorized to issue and enforce permits for the storage, treatment, or disposal of hazardous waste. Sierra Club, 824 F.Supp. at 197. The EPA has authorized Texas to administer its hazardous waste program in lieu of the federal program, in accordance with section 6929(b). 49 Fed.Reg. 48,300 (Dec. 12, 1984) (to be codified at 40 C.F.R. §§ 272.2200— 272.2249). Because Texas’ hazardous waste program is authorized by RCRA, it became effective pursuant to RCRA. Sierra Club, 824 F.Supp. at 197; Lutz, 725 F.Supp. at 261; Acme Printing Ink Co. v. Menard, 881 F.Supp. 1237, 1237 (E.D.Wis.1995); but see Dague, 935 F.2d at 1353; City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 978-79 (S.D.Ohio 1993); Thompson v. Thomas, 680 F.Supp. 1, 3 (D.D.C.1987). Therefore, the plaintiffs may enforce Texas’ hazardous waste program by bringing a citizen suit under section 6972(a)(1)(A). EPA’s interpretation of RCRA is consistent with the interpretation of Sierra Club, Lutz, and this court. During the approval process of the Texas hazardous waste program, EPA stated that a RCRA citizens suit could be maintained under section 6972 after Texas’ program was authorized. Citizen suit provisions of RCRA are found in Section 7002(a) (Subtitle G). Section 3006(b) requires that State programs be “equivalent to the federal program under this subtitle.” ... Section 3006 is in subtitle C of RCRA. EPA cannot require a State to provide for citizen suits as is contained in RCRA. However, it is EPA’s position that the citizen suit provision of RCRA is available to all citizens whether or not a state is authorized. 49 Fed.Reg. 48300, 48304 (Dec. 12, 1984) (emphasis added); see also id. at 48301 (“any person may, under Section 7002 of RCRA, commence a civil action on his own behalf’). F. State Regulation Defendant Gibraltar claims that," }, { "docid": "3529896", "title": "", "text": "amended complaint is whether RCRA’s citizen suit provision may be used to enforce statutes and regulations promulgated under a state’s authorized hazardous waste program. Section 6972(a)(1)(A), 42 U.S.C., provides that “any person may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this Act. ” (Emphasis added). The question then is whether Colorado’s hazardous waste program became effective pursuant to RCRA. RCRA directs the EPA to authorize states to administer hazardous waste regulatory programs that are “equivalent to” and “consistent with” the federal program and to carry out their programs “in lieu” of the federal program. 42 U.S.C. § 6926(b). States are authorized to issue and enforce permits for the storage, treatment or disposal of hazardous waste. Id. Colorado has promulgated regulations, pursuant to the Hazardous Waste Management Act, Colo.Rev.Stat. §§ 25-15-301 et seq., that specifically provide for the issuance of permits and prescribe the process for obtaining interim status for the storage of hazardous waste; activities that are the basis of the Sierra Club’s first two claims. 6 C.C.R. 1007-3 Part 100. The EPA has authorized Colorado to administer its hazardous waste program “in lieu” of the federal program. 49 Fed.Reg. 41036 (Oct. 19, 1984). See also, 54 Fed.Reg. 20847 (May 15, 1989); 56 Fed.Reg. 21601 (May 10, 1991). I conclude that because Colorado’s hazardous waste program was authorized by RCRA, it also became “effective” pursuant to RCRA, and therefore the citizen suit provision of section 6972(a)(1)(A) applies. Lutz v. Chromatex, Inc., 725 F.Supp. 258, 261 (M.D.Pa.1989) (Lutz II); but see, Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991). The Environmental Protection Agency (EPA) has adopted this interpretation of RCRA. In granting interim and then final authorization to Texas’ hazardous waste program the EPA stated, in response to concerns regarding an absence of a citizen suit provision, that a RCRA citizen suit may be brought under section 6972 after a state has received authorization to operate its program in lieu" }, { "docid": "972855", "title": "", "text": "administrative body. American Bakeries Co. v. Pan-O-Gold Baking Co., 650 F.Supp. 563, 566-67 (D.Minn.1986). The doctrine serves three main purposes: (1) promotes uniformity of interpretation and results; (2) removes facts outside the conventional experience of judges and places them within the expertise of the agency; and (3) promotes judicial economy by allowing resolution outside the court system. Id. When the doctrine applies, the judicial process should be suspended pending referral of the issues to the administrative body for review. Land O’Lakes notes that the primary jurisdiction doctrine applies in cases where state agencies are operating pursuant to a federal legislative scheme. See County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1310 (2d Cir.1990). According to Land O’Lakes, the MPCA has been delegated responsibility for enforcing RCRA. Moreover, Minnesota has been authorized to administer and enforce its hazardous waste program in lieu of subtitle C of RCRA, and Minnesota’s hazardous waste laws are incorporated by reference into the federal RCRA regulations. 42 U.S.C. § 6926(b); 40 C.F.R. § 272.1200-01. Land O’Lakes argues that the court should decline to override the decision by the MPCA not to require remedial action. The court disagrees. Applying the primary jurisdiction doctrine in citizen suit actions would greatly reduce the instances in which a plaintiff could pursue a citizen suit action. The court concludes that applying the doctrine would be inconsistent with RCRA’s statutory language. As explained previously, Congress has expressly set forth those situations in which a citizen suit under section 6972(a)(1)(B) is precluded. 42 U.S.C. § 6972(b)(2). Those situations include when a plaintiff has failed to notify the EPA Administrator, the appropriate state and the alleged violator, or when the EPA Administrator or state has commenced and is diligently prosecuting a court action. Id. Other courts have rejected the doctrine as applying to citizen suit actions. See Coalition for Health Concern v. LWD, Inc., 834 F.Supp. 953, 961-62 (W.D.Ky.1993). Accordingly, the court denies Land O’Lakes’ motion for abstention on the grounds of the primary jurisdiction doctrine. Land O’Lakes also argues that Craig Lyle’s claims are properly brought in state court based" }, { "docid": "18630484", "title": "", "text": "decision. Plaintiffs’ section 6972(a)(1)(B) claim is not a collateral attack on a previous permitting decision; instead, it is an attack on the operation of a facility in a manner inconsistent with the permits issued. Defendant Gibraltar’s reading of Greenpeace, that a plaintiff may not maintain an action against any defendant holding a permit under section 6972(a)(1)(B), is unfounded. Section 6972(a)(1)(B) does not expressly prohibit an action against a permitted entity. See 42 U.S.C. § 6972(a)(1)(B). Moreover, reading in such a limitation is inappropriate, taking into consideration the expansive language of section 6972(a)(1)(B), which prefaces the standard of liability by the word “may.” Dague, 935 F.2d at 1355. As the Second Circuit stated in Dague, the language of section 6972(a)(1)(B) suggests that Congress intended to confer jurisdiction necessary to eliminate any risk posed by toxic waste. Id. Adopting the interpretation of Greenpeace posited by defendant Gibraltar would be contrary to the language and apparent congressional intent relating to claims brought under section 6972(a)(1)(B). Rejecting defendant Gibraltar’s interpretation of Greenpeace does not undermine its rationale. That is, the plaintiffs shall not be permitted to relitigate the issuance of the permits to defendant Gibraltar; on the contrary, they may only challenge the operation of the facility when, in violation of its permit, it operates in a manner that endangers health or the environment. E. EPA-Authorized State-Operated Hazardous Waste Program Defendant Gibraltar claims that “RCRA may not be used to enforce EPA-authorized state hazardous waste programs in suits under 42 U.S.C. § 6972(a)(1)(A).” Defendant Gibraltar’s Motion for Judgment on the Pleadings, 8. The validity of defendant Gibraltar’s argument depends on section 6972(a)(1)(A), which states, in relevant part, that “any person may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this Act.” 42 U.S.C. § 6972(a)(1)(A) (emphasis added). Section 6972(a)(1)(A) suggests that the primary ques tion is whether Texas’ hazardous waste program became effective pursuant to RCRA. Sierra Club v. Chemical Handling Corp., 824 F.Supp. 195, 197 (D.Colo.1993);" }, { "docid": "13764635", "title": "", "text": "provisions have not “become effective pursuant to [RCRA].” See document 81 of record; see also 42 U.S.C. § 6972(a)(1)(A) (“any person may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [chapter 82 of Title 42, see 42 U.S.C. §§ 6901-6986]....” 42 U.S.C. § 6972(a). The court must disagree with defendants. Section 3006 of RCRA is contained in chapter 82. See 42 U.S.C. § 6926. It is section 3006 that authorizes states to develop and enforce their own hazardous waste programs and to operate those programs “in lieu of the federal program....” See id. § 6926(b) (“Any State which seeks to administer and enforce a hazardous waste program pursuant to this subchapter ...”) (emphasis added). Thus, as noted in McClellan v. Ecological Seepage Situation v. Weinberger, 707 F.Supp. 1182 (E.D.Cal.1988), it is at least arguable that a state statute “could ... have become effective pursuant to RCRA,” thus making a citizen suit proper, “if it is part of a state hazardous waste program that has been authorized by EPA under section 3006 of RCRA....” Id. at 1190-1191. The actions taken by the EPA in approving state programs under section 3006 of RCRA bolsters this conclusion. For example, the EPA has adopted the practice of incorporating by reference the requirements of state laws and regulations as “part of the hazardous waste management program under Subtitle C of RCRA ...” upon granting final authorization to the state’s hazardous waste management program. See, e.g., 40 C.F.R. §§ 272.1(b), 272.401(a) (Delaware’s program), 272.1351(a) (Montana’s program). This practice further supports the argument that Pennsylvania’s SWMA and accompanying regulations have “become effective pursuant to” chapter 82. Moreover, the EPA itself takes the position that a RCRA citizen suit may be brought after a state has received authorization to operate its program in lieu of the federal program. For example, in granting interim authorization to Texas pursuant to section 3006, the EPA responded to a comment regarding the adequacy of" }, { "docid": "972857", "title": "", "text": "on Minnesota’s authorization to enforce its laws regarding hazardous waste in lieu of RCRA Subtitle C. See Murray v. Bath Iron Works Corp., 867 F.Supp. 33, 42-43 (D.Me.1994); City of Heath v. Ash- land Oil, 834 F.Supp. 971, 980 (S.D.Ohio 1993); Thompson v. Thomas, 680 F.Supp. 1, 3 (D.D.C.1987). However, those courts which have dismissed citizen suit actions where the applicable federal requirements of RCRA have been superseded by an EPA-authorized state hazardous waste program have faced citizen suit actions brought under section 6972(a)(1)(A). For the purposes of determining the effect of an authorized state waste program, other courts do distinguish between citizen suit actions brought under section 6972(a)(1)(B). See Dague v. City of Burlington, 935 F.2d 1343, 1353 (2nd Cir. 1991), rev’d on other grounds, City of Burlington v. Dague, — U.S. —, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Clorox Co. v. Chromium Corp., 158 F.R.D. 120, 124 (N.D.Ill.1994). The court concludes that this citizen suit based on section 6972(a)(1)(B) is not superseded by a state program. 2. Burford Abstention The Burford doctrine states that where timely and adequate state court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; or (2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244-45, 47 L.Ed.2d 483 (1976)). Land O’Lakes cites Ado-Cascade Watch Co., Inc. v. Cascade Resource Recovery, Inc., 720 F.2d 897 (6th Cir.1983) in which the Sixth Circuit abstained under the Burford doctrine from deciding whether a hazardous waste facility" }, { "docid": "1707312", "title": "", "text": "Court finds that the City of Heath is not a “state” for purposes of 42 U.S.C. § 9607(a)(4)(A) and therefore is not able to bring a suit under subpart (A). Accordingly, the motion to dismiss count 2 is granted. B. COUNT 3: 42. U.S.C. § 6972(a)(1)(A) 1. Ohio’s Hazardous Waste Laws In count 3 plaintiff asserts a citizen suit under 42 U.S.C. § 6972(a)(1)(A) based on violations of 42 U.S.C. § 6922 regarding standards applicable to generators of hazardous waste, 42 U.S.C. § 6924 regarding standards applicable to owners and operators of hazardous waste treatment, storage and disposal facilities, and 42 U.S.C. § 6925 regarding permits. All the cited sections are found in subchapter III of RCRA dealing with Hazardous Waste Management. Ashland argues that plaintiff has failed to allege any violation of federal law because Ohio’s hazardous waste laws apply in lieu of federal law. Specifically Ashland argues that Ohio’s hazardous waste program codified at Ohio Administrative Code chapters 3745-50 through 3745-69 has been authorized by U.S. EPA to apply within the state in lieu of the federal program pursuant to 42 U.S.C. § 6926(b). Without an alleged violation of federal law, Ashland argues that plaintiffs citizen suit claim fails for lack of subject matter jurisdiction. Plaintiff agrees that Ohio received authorization to carry out its own hazardous waste program effective June 30, 1989. However, plaintiff argues that although Ohio’s program operates in lieu of RCRA, Ohio’s program has not received authorization to operate in lieu of the entire 1984 Hazardous and Solid Waste Amendments (HSWA), citing 54 Fed. Reg. 27173. Plaintiff argues to the extent its claims come within HSWA provisions not covered by the Ohio hazardous waste program its claims arise under federal law. In plaintiffs surreply, plaintiff lists forty-eight regulations implementing HSWA and enacted pursuant to the statutory provisions on which count 3 is based which plaintiff argues are still enforceable in Ohio as the state has not received authorization to implement its own plan in these areas. Plaintiff also argues that several alleged violations predate the authorization of the Ohio program and therefore are cognizable" }, { "docid": "939637", "title": "", "text": "require compliance” with the standards allegedly violated. 42 U.S.C. § 6972(b)(1)(B). Since the record is devoid of any suggestion that Maine has commenced any court action against BIW, as required by the relevant preclusion clause, the plaintiffs’ claim under section 6972(a)(1)(A) is not barred. On the merits of Count II, as an initial matter I note that a citizen suit under section 6972(a)(1)(A), unlike a citizen suit under section 6972(a)(1)(B), is prospective only, applying to ongoing or recurring violations of RCRA requirements. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57-59, 108 S.Ct. 376, 380-82, 98 L.Ed.2d 306 (1987). Thus, the plaintiffs can prevail only if they show an ongoing or recurring violation by BIW of RCRA requirements. City of Heath v. Ashland Oil, Inc., 834 F.Supp. 971, 980 (S.D.Ohio 1993). In addition, a direct action under section 6972(a)(1)(A) is unavailable where the applicable federal requirements of RCRA have been superseded by an EPA-authorized state hazardous waste program pursuant to 42 U.S.C. § 6926(b). Dague, 935 F.2d at 1352-53; Ashland Oil, 834 F.Supp. at 978-79; Lutz v. Chromatex, Inc., 718 F.Supp. 413, 425 (M.D.Pa.1989) (Lutz I). Effective May 20, 1988, Maine received final EPA authorization under 42 U.S.C. § 6926(b) to operate its state hazardous waste management program in lieu of the RCRA hazardous waste program, subject to the limitations imposed by the Hazardous and Solid Waste Amendments of 1984 (“HSWA”). 53 Fed.Reg. 16264, 16266-67; see also List of C.F.R. Sections Affected, 1988, 40 C.F.R. §-271 (July 1, 1993 ed.). This authorization, having not been withdrawn, has remained in full effect since that time. See 42 U.S.C. § 6926(e) (withdrawal of authorization). In their motion for summary judgment, the plaintiffs allege violations of various federal closure and post-closure standards under 42 U.S.C. § 6925(a) and 40 C.F.R. § 264. These provisions, however, have been superseded by Maine’s EPA-authorized hazardous waste management program. See 40 C.F.R. § 264.1(f). The plaintiffs have not identified any violation of the provisions of RCRA, such as those enacted under HSWA, that would have survived Maine’s receipt of final authorization to operate" } ]

[ { "docid": "22550854", "title": "", "text": "Ford, Judge: This suit challenges the classification of the collector of certain imported merchandise as “Other Nets” and the consequent levy of duty thereon at the rate of 45 per centum ad valorem under paragraph 1529 (a) of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802. Plaintiff claims said merchandise to be properly dutiable at the rate of 25 per centum ad valorem under said paragraph 1529 (a), as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T. D. 52739, as lace, made on a bobbinet-Jacquard machine. The involved paragraphs, as modified, are as follows: [5] All fabrics and articles, plain or figured, made on a lace or net machine: Nets and nettings, not embroidered: Made on a bobbinet machine and wholly or in chief value of cotton: * * * * * * jfí Other-45% ad val. [3] Laces, etc., if made on a bobbinet-Jacquard machine, whether or not embroidered, and however provided for in this subparagraph (a), but not including veils or veilings, 25% ad val. At the trial of this case, a representative sample of the subject merchandise was admitted in evidence and marked plaintiff's exhibit 1; a commission, containing the testimony of plaintiff's witness Bernard Godber, was admitted in evidence as plaintiff’s exhibit 2; and three samples of merchandise, illustrative of lace, were admitted in evidence as plaintiff’s illustrative exhibits 3, 4, and 5. In addition, plaintiff offered the testimony of five witnesses and the defendant offered the testimony of two witnesses. Counsel for the parties agreed that plaintiff’s exhibit 1 represents in all material respects item No. 35087, covered by the protest at bar, and, further, that this sample is composed wholly of cotton. When witness Bernard Godber was asked whether or not the machine used to make the point d’esprit net, item No. 35087, was a bobbinet machine with a Jacquard attachment, he answered: “Definitely is a bobbinet machine with a Jacquard attachment.” This testimony is nowhere denied or contradicted. It" } ]

[ { "docid": "22594902", "title": "", "text": "law makes clear that such review is the exception, not the.rule. Local 3, Int’l Bhd. of Elec. Workers, AFL-CIO, 845 F.2d at 1180. In sum, what constitutes a “reasonable” level of specificity varies depending on the particular context. Cf. Re porters Comm., 489 U.S. at 776-80, 109 S.Ct. 1468 (rap sheets are per se exempt from disclosure under Exemption 7(C)). In the present context, the degree of specificity provided by the Moran Declaration is in fact reasonable. See Keys, 830 F.2d at 346-47, 349 (upholding, after in camera review, affidavits that categorized redac-tions by three headings: “individuals mentioned in FBI investigative files,” “subjects of FBI investigations,” and “FBI informants”); King, 830 F.2d at 232 & n. 160 (upholding comparable affidavits under Exemption 7(C) while also remanding under Exemption 1). Our holding is not intended to relieve the government of all duty to provide further detail every time it invokes Exemption 7(C). To the contrary, a district court should be particularly receptive, for example, to a request by a party that the government provide itemized descriptions of documents and redactions appearing in a representative sample of the material in question. See, e.g., Meeropol, 790 F.2d at 956-57 (approving of random sampling approach); cf. Jones v. FBI, 41 F.3d 238, 243 (6th Cir.1994) (court conducted in camera examination of about 200 randomly selected pages together with about 350 other pages selected by plaintiff). But where, as here, the amount of redacted material is unwieldy — and plaintiff has not requested such a sampling' — remand would not be useful. Reasonableness demands a certain respect for the practicalities of the situation. The government has sustained its burden of demonstrating that Exemption 7(C) should shield the release of information compiled for law enforcement purposes because such release would in this case constitute an unwarranted invasion of personal privacy. C. Exemption 7(D) — Identity of a Confidential Source The district court also ruled that the Moran Declaration satisfied the government’s burden of proof with respect to Exemption 7(D). Once again, the Declaration followed the same coded index format to correlate specific redactions in Exhibit “NN.”" }, { "docid": "11616214", "title": "", "text": "or parts thereof.” The parties have also stipulated that it is plaintiff’s sole claim that the merchandise in issue is properly dutiable under item 731.60 of the tariff schedules as equipment designed for sport fishing, fishing tackle, and parts of such equipment and tackle, not specially provided for, at 25 per centum ad valorem. This protest was previously submitted to the court for decision upon a stipulation of the parties that the merchandise in question was the same in all material respects to the merchandise in the International Distributors, Inc. case, which held that the merchandise was fishing tackle or parts thereof, and was therefore properly classified under paragraph 1535 of the Tariff Act of 1930, the predecessor provision to item 731.60 of the Tariff Schedules of the United States. Based upon the stipulation as to the similarity of the merchandise, on July 10, 1967, the court entered a judgment sustaining the protest. Thereafter, the defendant moved for an order vacating the judgment on the ground that the stipulation had been inadvertent. The inadvertence stemmed from-the fact that, at the time of the submission of the stipulation, the defendant had issued a notice limiting the International Distributors, Inc. decision. This limitation was based upon defendant’s belief that, at a retrial, evidence would be available to establish uses for the merchandise in question other than in sport fishing. Specifically, defendant’s motion to vacate referred to T.D. 67-106 (1 Customs Bulletin 216, 217) which, insofar as pertinent, reads as follows: “The Bureau believes that at a retrial of this issue evidence can be presented to establish that there is a wide variety of uses for these cork balls and that these multi-purpose articles have not been associated with that one use as fishing floats so extensively as to acquire the status of parts of fishing tackle.” T.D. 67-106 therefore concluded: “The principle of C.D. 2822 [the International Distributors, Inc. case] is limited to the merchandise the subject of that case.” In the International Distributors, Inc. case, in the words of the court, “[pjlaintiff was entitled to, and did, adopt the collector’s determination" }, { "docid": "3689866", "title": "", "text": "Opinion by Oliver, C. J. It was stipulated that the merchandise and issues are the same in all material respects as those the subject of John P. Herber & Co., Inc. v. United States (30 Cust. Ct. 193, C. D. 1519). In accordance with stipulation of counsel and following the cited case, the protest was dismissed, and the matter was remanded to a single judge sitting in reappraisement for determination of the value of the merchandise in the manner provided by law (28 U. S. C. § 2636 (d))." }, { "docid": "17803511", "title": "", "text": "Opinion by Johnson, J. In accordance with stipulation of counsel that the merchandise, facts, and issues are the same in all material respects as those the subject of R. J. Saunders & Co., Inc. v. United States (37 Cust. Ct. 267, C. D. 1834), the collector was directed to [reliquidate the entries, assessing duty upon the basis of the unit appraised value per conditioned pound or kilo, multiplied by the total number of conditioned pounds or kilos, as set forth in the invoices." }, { "docid": "15608837", "title": "", "text": "in paragraph 216. In this connection, counsel states: It has been held on many occasions that a provision for articles “in part” of a named material is more specific than a provision for articles in chief value of some other material, citing Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, T.D. 41232; United States v. Marshall Field & Co., 17 C.C.P.A. (Customs) 287, T.D. 43693; United States v. Bullocks Inc., 24 C.C.P.A. (Customs) 41, T.D. 48330; and Ropa Co. v. United States, 27 C.C.P.A. (Customs) 42, C.A.D. 59. In the reply brief filed on behalf of the plaintiff, its counsel points out that the foregoing cases cannot be considered as authorities for the proposition stated, especially as related to the competing provisions in the case at bar, and we agree with this view. The Altman case, as counsel for the plaintiff points out, is not relevant to the present issue, inasmuch as the sole question in that case was one of entireties rather than one of relative specificity. .The other three eases concern tariff provision competitions in which the provision for articles “in part of” a named material was followed by “invading” language, giving that provision precedence over all other tariff provisions which might otherwise embrace the subject merchandise. None of those cases can be considered to have established a rule which would be applicable in the present case. We are of the opinion, however, that with respect to the merchandise in question, i.e., that which was classified under paragraph 216, neither the facts stipulated nor the law applicable thereto warrant a judgment in favor of the plaintiff’s claim. Item 1558 of part I of the Presidential proclamation relating to the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, reported in T.D. 54108, under which plaintiff claims the merchandise should be classified, reads as follows: All articles manufactured, in whole or in part, not specially provided for: Synthetic rubber and synthetic rubber articles; and mud-disperant derived from coniferous bark. The foregoing provision represents a modification of the provisions of paragraph 1558 of" }, { "docid": "11616213", "title": "", "text": "25% ad val.” As may be gleaned from the foregoing, the question presented is whether the natural cork balls, the subject of this case, are to be classified, for customs duty purposes, as fishing tackle or parts of fishing tackle, rather than articles not specially provided for, of cork. In addition to the official papers and a pre-trial memorandum, the record in this case consists of the testimony of three witnesses for the plaintiff, two for the defendant, and three exhibits introduced by the plaintiff. The record also includes the record in the case of International Distributors, Inc. v. United States, 57 Cust. Ct. 369, C.D. 2822 (1966), and a stipulation entered into by the parties and approved by the court. Among other things, by the stipulation the parties have agreed that the merchandise in the case at bar is “the same in all material respects to that considered in International Distributors, Inc. v. United States, C.D. 2822, and therein held to be dutiable under the provisions of Paragraph 1535, as modified, as fishing tackle or parts thereof.” The parties have also stipulated that it is plaintiff’s sole claim that the merchandise in issue is properly dutiable under item 731.60 of the tariff schedules as equipment designed for sport fishing, fishing tackle, and parts of such equipment and tackle, not specially provided for, at 25 per centum ad valorem. This protest was previously submitted to the court for decision upon a stipulation of the parties that the merchandise in question was the same in all material respects to the merchandise in the International Distributors, Inc. case, which held that the merchandise was fishing tackle or parts thereof, and was therefore properly classified under paragraph 1535 of the Tariff Act of 1930, the predecessor provision to item 731.60 of the Tariff Schedules of the United States. Based upon the stipulation as to the similarity of the merchandise, on July 10, 1967, the court entered a judgment sustaining the protest. Thereafter, the defendant moved for an order vacating the judgment on the ground that the stipulation had been inadvertent. The inadvertence stemmed" }, { "docid": "13000531", "title": "", "text": "the court there held that the record in said T. D. 29521 was improperly incorporated, pointing out that the precise issues in the two cases were not the same, the classification in one case being as an article in chief value of metal, whereas, in the later Sellers case (Abstract 43170), the classification was “sheets and plates of steel not specially provided for; all the foregoing * * * valued above 16 cents per pound.” While the witness in the Sellers record, incorporated herein, testified that “sometimes this merchandise is imported in different sizes” varying “from by %\" to 18\" by 24\", or maybe 18\" by 36\",” it is not clear that any other dimensions, than those represented by exhibit 1 in that case, were then before the court, and the opinion in that case indicates that the record of an earlier case had been improperly incorporated. The opinion further indicates that the court was predicating its decision upon merchandise represented by said exhibit 1, which is materially different in dimensional qualifications from the subject merchandise herein. The foregoing analysis of the various decisions in the Sellers cases leads us to the conclusion that the merchandise to which those cases related was not the same in essential dimensional factors nor in degree of manufacture to the subject merchandise herein. Consequently, the basic factual differences between the Sellers cases and the case at bar leave the present case unaffected by the earlier ones. Therefore, the doctrine of legislative approval of judicial construction does not apply and cannot be properly invoked herein. Upon the record before us and for the foregoing reasons, we find and hold that the items invoiced as steel plates, % inch thick, % to 3% inches wide, and 24 inches long, are properly classifiable as bars, neither cold rolled nor polished, of the kind enumerated in paragraph 304 of the Tariff Act of 1930 and dutiable at the appropriate rates provided therein. That claim in protest 241476-K is sustained. Judgment will issue in accordance with the views herein expressed." }, { "docid": "22725531", "title": "", "text": "of 25 per centum ad valorem, an additional claim for duty at the rate of 20 per centum ad valorem under the provision in paragraph 1558 for nonenumerated manufactured articles is included in each protest. This claim, while not specifically pressed, was not abandoned. The claim does not appear in the protests covering the merchandise which was assessed with duty at the rate of 12}( per centum ad valorem under paragraph 1519 (a), as modified. The record made on the trial of the issues herein presents afresh the issues presented in the case of Kung Chen Fur Corp. v. United States, decided by a majority of the first division of this court — the writer dissenting — on January 13, 1950, in favor of the plaintiff’s claim, the said decision being reported in 24 Cust. Ct. 24, C. D. 1203. Upon appeal by the defendant, the decision was affirmed by our appellate court under the style of United States v. Kung Chen Fur Corporation, reported in 38 C. C. P. A. (Customs) 107, C. A. D. 447. It was stipulated and agreed between counsel in the case at bar that the merchandise covered by the protests and entries listed in the protest schedule, which is attached hereto and made a part of this decision, is in all material respects the same as the merchandise the subject of the Kung Chen Fur Corp. case, supra. The record in that case was incorporated as part of the record in the instant case by agreement of counsel, and the plaintiff thereupon rested. The defendant then offered the testimonial evidence of 14 additional witnesses, and the plaintiff offered the evidence of 5 witnesses in rebuttal. In the incorporated case, the majority of this court, and the majority of the Court of Customs and Patent Appeals on appeal thereto, were of the opinion that the processes to which the kidskins involved had been subjected in China prior to being sewn into plates (the so-called “China dressing process”) did not dress the same within the meaning of the term “dressed,” as used in the provision for" }, { "docid": "22666653", "title": "", "text": "san ping 82 sie sat 1338 sai chok (yoke 9 kwat cheun san (wai san) 10/13 ngoi pak hop 14/15 hong chuen san (wai san) 22/4 hoi pak lin 35 hard nuts (lo hon quar) 44 hard nuts (lo hon quar) 73 sui sut 91 lung ngan pulp 1342 944103G/G0034 Tong Ciiun Gauk. 5 — 2 chuen mok kwar 16 — 1 yuk 23 — 2 sha sum 24 — 7 ehing 25 — 1 yuk chuk 25 — 14 yee shan tiu (wai san) 26 — 1 chuen shan (wai 27 — 7 mak hung (yuk chuk) Having decided that all of the commodities involved are drugs, and in view of the above stipulation, we hold as follows: That the items enumerated in the stipulation set forth above, with the exception of those followed by the letters G, H, and E in the column designated “Invoice descriptions” are properly free of duty under paragraph 1669 of the Tariff Act of 1930 as crude drugs. That the items enumerated in said stipulation followed by the letters G, H, and E in said column, are properly dutiable as drugs advanced under paragraph 34 of the same act. That in protest 481730-G the testimony shows that the commodity covered by item 2, case 1, is similar to Exhibit B and that the commodity covered by item 3, case 1, is similar to Exhibit O. We therefore sustain the claims for free entry as crude drugs under paragraph 1567 of the Tariff Act of 1922, as to those items. As to protest 545036-G the testimony discloses that the merchandise in case 3 consists of bak hop similar to Exhibit A herein; that the merchandise covered by case 19, item 9, consists of sui sut similar to Exhibit D and that covered by case 21, item 6, consists of yuen yuk similar to Exhibit J. We therefore sustain the claims for free entry as crude drugs under paragraph 1669, Tariff Act of 1930, as to those items. As to .protest 938217-G we accept the statements of counsel for the plaintiffs at the hearing, which" }, { "docid": "22648698", "title": "", "text": "Fohd, Judge: The suit listed above challenges the action of the collector of customs in classifying certain imported merchandise as cotton trimmings and levying duty thereon at the rate of 45 per centum ad valorem under paragraph 1529 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T. D. 52739. Plaintiff claims said merchandise to he properly dutiable at 17K per centum ad valorem under paragraph 912 of the Tariff Act of 1930, as modified by said Torquay protocol, as made effective by T. D. 52820, as fabrics with fast edges, not over 12 inches wide, wholly or in chief value of cotton, and not specially provided for. At the beginning of the trial, it was agreed between the respective counsel “that the imported merchandise consists of fabrics with fast edges, not over 12 inches wide, wholly or in chief value of cotton, and not garters, suspenders, or braces, and that they are Jacquard woven.” The two paragraphs involved in this case, so far as here pertinent, are as follows: Par. 1529. * * * Neck rufflings, flutings, quillings, rucMngs, tuckings, trimmings, gimps, and ornaments, 45 per centum ad valorem. Par. 912. Fabrics, with fast edges, not over 12 inches wide, and articles made therefrom; garters, suspenders, and braces; all the foregoing, wholly or in chief value of cotton or of cotton and india rubber, and not specially provided for, 17)4 per centum ad valorem. In addition to the stipulation hereinbefore quoted, counsel for the plaintiff offered the testimony of one witness, and counsel for the defendant offered the testimony of two witnesses. Plaintiff’s witness stated that he was president of the plaintiff corporation; that he had been employed by said corporation for 21 years; that said firm has been engaged in the business of importing woven goods, woven ribbons of all types, and straw materials from various countries, including France, West Germany, Switzerland, and Italy, and that his company also handled domestically manufactured items of the same general class; that said company sold its" }, { "docid": "13657806", "title": "", "text": "Oliver, Chief Judge: The protests, enumerated in schedule “A,” hereto attached and made a part hereof, relate to certain articles, described on the invoices either as “Celluloid Baby 2}i\" with Chenille stem” (manufacturer’s item number T-8294) or “Celluloid Baby with Milk Bottle & Diaper on stem, movable hands” (manufacturer’s item number T-8382), that were classified under paragraph 1513 of the Tariff Act of 1930, which, so far as pertinent, reads as follows: Par. 1513. Dolls * * * composed wholly or in chief value of any product provided for in paragraph 31, having any movable member or part, 1 cent each and 60 per centum ad valorem; not having any movable member or part, 1 cent each and 50 per centum ad valorem; * * *. The articles identified by manufacturer’s number T-8294, supra, were assessed at the rate of 50 per centum ad valorem, and those represented by manufacturer’s number T-8382, supra, were assessed at the rate of 60 per centum ad valorem. Plaintiffs claim that the merchandise being equipped with a chenille stem (item T-8294, supra) or with chenille stem, milk bottle, and diaper (item T-8382, supra) is something more than dolls, and that, therefore, these articles are properly classifiable under the provision for articles, not specially provided for, wholly or in chief value of cellulose compounds, other than cellulose acetate, in paragraph 31 (b)' (2) of the Tariff Act of 1930, as modified by T. D. 52373, supplemented by T. D. 52462, carrying a dutiable rate of 30 per centum ad valorem. At the trial, counsel for the respective parties submitted these protests on an oral stipulation to the effect that the merchandise in question is the same in all material respects as the article which was the subject of our decision in W. C. Sullivan & Co. v. United States, 37 Cust. Ct. 385, Abstract 60266, the record in which case was incorporated herein by consent. The incorporated case involved an issue identical with that presented herein. The merchandise involved therein (plaintiff’s collective exhibit 1) was described as— * * * a flesh-colored, hollow, celluloid doll," }, { "docid": "11291297", "title": "", "text": "CDP to the Unsealing of Certain Docs, at 1-2. CDP requests that “bank account or other personal or sensitive information be redacted.” Id. at 2. Moreover, “CDP continues to have an objection to lifting confidentiality with respect to three sets of documents,” id., allegedly protected under Hubbard, id. at 3. The second and third sets of documents, according to CDP Plaintiffs, “include sensitive fundraising and coordinated campaign planning documents,” id., and the first set of documents, a “fundraising ‘call’ list,” id. at 4, contains “potentially sensitive personal and political information,” id. At a minimum, CDP Plaintiffs argue that the “names and organizations of the[se] potential donors” should be redacted. Id. The Three-Judge District Court has not cited or quoted from the second or third set of documents, but has quoted from the first set of documents, the “fundraising ‘call’ list,” CDP 00124 (Quoted, Kollar-Kotelly’s Opinion at Findings ¶ 1.77.10; Leon’s Opinion at Findings ¶ 229). This Court, however, is not persuaded that the quoted portions of this document are subject to confidentiality contrary to “this country’s strong tradition of access to judicial proceedings.” Hubbard, 650 F.2d at 317 n. 89. The Three-Judge District Court only quotes a snippet of material, which does not indicate any sensitive personal information about individual donors. The quote is highly probative and is narrowly tailored to protect both CDP Plaintiffs and third party privacy interests. As a result, this material will be disclosed to the public as it appears, quoted in the Three-Judge District Court’s opinion. (j) Adams Plaintiffs Adams Plaintiffs have waived their objections to the unsealing of all the documents that they filed with the Court. Adams Pis.’ Supp. Submission Regarding the Status of Docs. Filed Under Seal at 3 (“Therefore, all materials that the Adams plaintiffs filed under seal should be unsealed as of the date specified in the stipulation.”) (emphasis in original). (k) Thompson Plaintiffs Thompson Plaintiffs did not file any objections to the Three-Judge District Court’s Oral Order and have thereby waived any objection to this Court’s order to unseal portions of the record. (1) Defendant Intervenors Defendant Intervenors filed" }, { "docid": "8600988", "title": "", "text": "RichaedsoN, Judge: The merchandise of this protest consists of cigarette lighters. By way of amendment to the protest, it is claimed that liquidation is void because notice of appraisement was not given as required by law. The protest was submitted to the court upon a stipulation which reads: IT IS HEREBY STIPULATED AND AGREED by and between counsel for the plaintiff and the Assistant Attorney General for the United States, subject to approval of the Court, as follows: 1. That the imported merchandise consists of cigarette lighters exported from the Virgin Islands on or about March 26, 1958. 2. That said merchandise was imported into the United States on April 1, 1958, and entered free of duty under the provisions of Sec. 301 of the Tariff Act of 1930, as amended, as a product of the Virgin Islands, not containing more tban 50% of foreign materials. 3. That said merchandise was appraised at a value lower than the entered value. 4. That the appraiser’s determination of value resulted in a change in the classification of the merchandise. 5. That the collector of customs did not give written notice of appraisement to the consignee, his agent, or his attorney. 6. That all of the papers received by the customs court from the collector of customs may be received in evidence as an unmarked exhibit. IT IS HEREBY FURTHER STIPULATED AND AGREED that the protest is submitted on this stipulation. Accepting this stipuation as evidence of the facts, and upon the authority of 19 U.S.C.A., section 1501 (section 501, Tariff Act of 1930), we hold that the claim of the plaintiff that the liquidation is void because notice of appraisement was not given as required by law is sustained. In accordance with the provisions of 28 U.S.C.A., section 2636(d), the matter is remanded to a single judge of this court to determine the proper dutiable value of the subject merchandise in the manner provided by law. Judgment will be entered accordingly." }, { "docid": "16322811", "title": "", "text": "Ford, Judge: The cases listed in schedule “A,” annexed hereto and made a part hereof, consolidated for the purpose of trial, cover the importation of certain repair parts for can-closing machines and can-making machines, exported by a subsidiary of the actual importer herein, American Can Co. All of the merchandise was entered after the effective date of the Customs Simplification Act of 1956,91 Treas. Dec. 295, T.D. 54165, and does not appear on the final list promulgated by the Secretary of the Treasury, 93 Treas. Dec. 14, T.D. 54521. The merchandise was appraised on the basis of constructed value as defined in section 402(d), Tariff Act of 1930, as amended, infra, at the “invoiced unit prices, plus 7.53 percent, plus 36.7 percent profit, pkd., Can. $.” Counsel for tbe respective parties stipulated that the invoiced value represents cost of materials and fabrication, and other processing employed in producing the merchandise as well as the cost of all containers and coverings. It was also agreed that no amount for general expenses and profits was included in the invoiced price and the increase of 7.53 percent represents an exchange conversion factor, which plaintiff does not contest. The parties have also stipulated that the figure of 36.7 percent added to the appraisement represents 20.8 percent for general expenses and 15.9 percent for profit. The balance of the stipulation insofar as is pertinent provides as follows: 1. The merchandise involved in the instant appeal for reappraisement consists of can making machine repair parts (hereinafter called MRP) and can closing machine repair parts (hereinafter called CMRP) entered in ten separate entries at Niagara Falls, New York, between the dates of December 21,1962 and March 27,1963. * * * The exporter American Can Company of Canada, Limited, Hamilton, Ontario, is a wholly-owned subsidiary of the American Can Company, a domestic corporation, on whose account the merchandise was entered. $ $ ‡ ‡ $ 5. CMRP are items of the same general class or kind as MRP in that they are alike in component materials and in the purposes for which used, and they are approximately equal" }, { "docid": "13657807", "title": "", "text": "(item T-8294, supra) or with chenille stem, milk bottle, and diaper (item T-8382, supra) is something more than dolls, and that, therefore, these articles are properly classifiable under the provision for articles, not specially provided for, wholly or in chief value of cellulose compounds, other than cellulose acetate, in paragraph 31 (b)' (2) of the Tariff Act of 1930, as modified by T. D. 52373, supplemented by T. D. 52462, carrying a dutiable rate of 30 per centum ad valorem. At the trial, counsel for the respective parties submitted these protests on an oral stipulation to the effect that the merchandise in question is the same in all material respects as the article which was the subject of our decision in W. C. Sullivan & Co. v. United States, 37 Cust. Ct. 385, Abstract 60266, the record in which case was incorporated herein by consent. The incorporated case involved an issue identical with that presented herein. The merchandise involved therein (plaintiff’s collective exhibit 1) was described as— * * * a flesh-colored, hollow, celluloid doll, approximately 2% inches in length and 2 inches in body circumference. A thin strip of chenille, approximately 5)4 inches in length, is glued to the back of the doll. There was an agreement between the parties that the article was “composed in chief value of a cellulose compound other than acetate.” In this case, one of the items in question is identical with the article that was before us in the incorporated case. The other item under consideration (plaintiffs’ exhibit 2) is the same, except that, in addition to the chenille stem, the doll appears to be holding a milk bottle and is fitted with a diaper. Analysis of the testimony adduced in the incorporated case is set forth in our decision (Abstract 60266, supra) as follows: One witness testified. He was the import manager of Oscar Leistner, Inc., importer of the merchandise under consideration, and whose business includes the importation of “artificial decorations and novelties.” The witness, who does “the buying and the selling and other work connected with it” for his employer, testified" }, { "docid": "22666654", "title": "", "text": "letters G, H, and E in said column, are properly dutiable as drugs advanced under paragraph 34 of the same act. That in protest 481730-G the testimony shows that the commodity covered by item 2, case 1, is similar to Exhibit B and that the commodity covered by item 3, case 1, is similar to Exhibit O. We therefore sustain the claims for free entry as crude drugs under paragraph 1567 of the Tariff Act of 1922, as to those items. As to protest 545036-G the testimony discloses that the merchandise in case 3 consists of bak hop similar to Exhibit A herein; that the merchandise covered by case 19, item 9, consists of sui sut similar to Exhibit D and that covered by case 21, item 6, consists of yuen yuk similar to Exhibit J. We therefore sustain the claims for free entry as crude drugs under paragraph 1669, Tariff Act of 1930, as to those items. As to .protest 938217-G we accept the statements of counsel for the plaintiffs at the hearing, which were not objected to by the Government, that invoice item 43, sar sum, which is marked with the letters “HH” and the initials “HLW,” and invoice items 44 and 45, both of which are marked with the letter “E” and the initials “HLW,” as an agreement that the items enumerated are similar to Exhibits HH and E, respectively, herein. We therefore sustain the claim for free entry under paragraph 1669 of the same act as to the item numbered 43 on the invoices, marked with the letters HH and the initials HLW. The protest is also sustained in so far as it claims the merchandise dutiable at 10 per centum ad valorem under paragraph 34 of the same act, as to the invoice items 44 and 45, marked with the letter E and the initials HLW. In protest 848655-G we also accept counsel’s statement at the hearing as an agreement that invoice case 8, item 1, “Chuen Mogh,” marked with the letters “KK” and the initials “HLW,” is similar to the item Exhibit KK. However" }, { "docid": "10944900", "title": "", "text": "Opinion by Oliver, J. In accordance with stipulation of counsel that the merchandise consists of plastic paperweights similar in all material respects to those the subject of Abstract 67488, the claim of the plaintiff was sustained." }, { "docid": "21157139", "title": "", "text": "MOLLISON, Judge. The protests enumerated in the attached schedule were submitted for decision upon stipulation of counsel for the parties reading as follows: “It Is Hereby Stipulated and Agreed by and between counsel for the plaintiff and the Assistant Attorney General for the United States that the items marked ‘A’ and initialed PFF (Examiner’s Initials) by Examiner P. F. Feran (Examiner’s Name) on the invoices covered by the protests enumerated in the attached Schedule ‘A’ and assessed with duty at 10% ad valorem under Par. 405 of the Tariff Act of 1930 consist of sticks of wood similar in all material respects to the merchandise the subject of Rico Products Co. et al. v. United States, C.D. 2159, wherein the Court held that said articles were properly free of duty under Par. 1806 of the Tariff Act of 1930. “It Is Further Stipulated and Agreed that the record in Rico Products Co. et al. v. United States, C.D. 2159 be incorporated in the record in these cases and that the protests be submitted on this stipulation, the same being limited to the items marked ‘A’ as aforesaid. “It Is Further Stipulated and Agreed that there is now on file with the Collector of Customs at the port of Los Angeles a power of attorney to file protests in favor of Lawrence & Tuttle, Horace Holloway Elder, Elaine Frances Overacker or any one of them executed by two of the partners of Rico Products Co. “It Is Further Stipulated and Agreed that there is now on file with the Collector of Customs at Los An-geles a power of attorney to file protests in favor of Lawrence & Tuttle, Horace Holloway Elder, Elaine Frances Overacker or any one of them signed by Roy John Maier, President of Roy J. Maier Products.” It seems clear that counsel for the parties considered it necessary, or at least expedient, to stipulate the matters contained in the third and fourth paragraphs quoted above for the reason that, attached to the “Report of the Collector on Protest,” customs Form 4297, in each case is a memorandum or" }, { "docid": "16715213", "title": "", "text": "Opinion by Oliver, C.J. In accordance with stipulation of counsel that the merchandise consists of chord organs and parts thereof similar in all material respects to those the subject of Excelsior Accordions, Inc. v. United States (48 Cust. Ct. 148, C.D. 2328), the claim of the plaintiff was sustained." }, { "docid": "6145349", "title": "", "text": "cited the case of United States v. Wanamaker, 14 Ct. Cust. Appls. 285, T. D. 41888, in which the imported commodity consisted of rock crystal beads, graduated, faceted, cut, and strung. The appellate court found that the merchandise was- — ■ * * * not dedicated to the making of a certain definite article of jewelry, “nor is it a certain definite article of jewelry in an incompleted or unfinished state.” It was not a necklace in its imported condition and to finish it into a necklace would require more than adding to what has already been done. To finish it into a necklace all of the beads, in the order in which they are now strung, might be used, but the present temporary cord would have to be replaced with a- different one. The court then stated that “under such a statement of facts, the importation could not properly be called unfinished jewelry.” All that was said concerning the merchandise involved in the Capt. J. C. Hillis and Thomson Trading Co. and Wanamaker cases, as hereinabove quoted, has equal application, with the same force and effect, to the shell strands now under consideration. Accordingly, we hold that the articles are not properly classifiable as jewelry, finished or unfinished, under paragraph 1527 (a) (2), as modified, as assessed by the collector. Since it is agreed between the parties that the articles in question are the same in all material respects as the merchandise which was passed upon in the Colonial Bead Co., Inc., case, supra, we therefore follow the decision therein and hold the shell strands described on the invoice as “natural doveshells 36\" temporarily strung” (item 5163), and “spiderconch & dyed mudshell strands 36\" temporarily strung” (item 5111) to be free of duty under paragraph 1738 of the Tariff Act •of 1930, as claimed. To the extent indicated, that claim in the protest is sustained and judgment will be rendered accordingly." } ]

[ { "docid": "22290826", "title": "", "text": "seven months. The ultimate questions of whether a variance existed, and whether it was fatal such that relief is required, are questions of law that we review de novo. See United States v. Cardall, 885 F.2d 656, 670 (10th Cir.1989). “[I]t is a fundamental precept of federal constitutional law that a ‘court cannot permit a defendant to be tried on charges that are not made in the indictment.’” Hunter v. New Mexico, 916 F.2d 595, 598 (10th Cir. 1990) (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (I960)), cert. denied, 500 U.S. 909, 111 S.Ct. 1693, 114 L.Ed.2d 87 (1991). Case law recognizes two different types of variances, similar in kind and different in degree. The first type of variance, referred to as a simple variance, “occurs when the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” United States v. Haddock, 956 F.2d 1534, 1548 (10th Cir.1992) (citations and internal quotations omitted); see also Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979) (“A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.”). The second type of variance, known as a constructive amendment of the indictment, is “more dangerous” than a simple variance “because it actually modifies an essential element of the offense charged,” thereby “effectively altering] the substance of the indictment.” Hunter, 916 F.2d at 599. With respect to the prohibition against simple variances, which is at issue in this case, we note the mere fact that a variance occurred does not automatically warrant relief. “Where a simple variance exists, ‘convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment.’” Hunter, 916 F.2d at 599 (citing United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985)). This follows from the fact that the prohibition against variances is designed to insure notice of" } ]

[ { "docid": "11775016", "title": "", "text": "trial court’s instruction, read as a whole, require the jury to find that one of the overt acts listed in the indictment had to have occurred within five years of the indictment to satisfy the statute of limitations? B. If the trial court’s instruction to the jury did require that one of the overt acts listed in the indictment had to have occurred within five years of the indictment to satisfy the statute of limitations, was that instruction correct? C. Assuming that the charge was incorrect on this point and also overly favorable to the defendants, can such an erroneous charge be a basis for relief to the defendants, or would it constitute harmless error, see, e.g., United States v. Lane, — U.S —, 106 S.Ct. 725, 88 L.Ed.2d 814? D. In light of the court’s instruction, can the conviction of defendants Schurr and Rosetsky be upheld if the only overt acts proven to be part of the conspiracy between them and Valley Fish were the \"periodic payments\" that extended into 1979 which were not listed in the indictment? E. Was the $2,500 \"finders’ fee” payment from Valley Fish to defendant Schurr part of the conspiracy proven at tried? . It is well settled that the government can prove overt acts not listed in the indictment, so long as there is no prejudice to the defendants thereby. United States v. Adamo, 534 F.2d 31, 38-39 (3d Cir.), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976). See also United States v. U.S. Gypsum Company, 600 F.2d 414, 419 (3d Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979). There would appear to be no reason that the government could not satisfy its requisite showing under the statute of limitations by means of an overt act not listed in the indictment. Cf. Brulay v. United States, 383 F.2d 345, 350-51 (9th Cir.) (holding that a conspiracy conviction may \"rest upon proof of an overt act not charged in the indictment”), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967). See also" }, { "docid": "12828684", "title": "", "text": "not doubt that the jury was convinced beyond a reasonable doubt that Defendant participated in a conspiracy relating to Counts 26, 27, and 28. We therefore cannot conclude that the district court’s failure to inquire constitutes reversible error. We are left with the question of whether a variance occurred, and, if so, whether it substantially prejudiced Defendant’s rights. II. “A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.” United States v. Edwards, 69 F.3d 419, 432 (10th Cir.1995) (internal quotation marks omitted) (quoting Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979)), cert. denied sub nom., Chaplin v. United States, 517 U.S. 1243, 116 S.Ct. 2497, 135 L.Ed.2d 189 (1996); see United States v. Powell, 982 F.2d 1422, 1431 (10th Cir.1992), cert. denied, 508 U.S. 917, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). The variance is reversible error only if it affects the substantial rights of the accused. See Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). “Accordingly, where a single conspiracy is charged in the indictment, and the government proves only multiple conspiracies, a defendant who suffers substantial prejudice must have his conviction reversed.” Edwards, 69 F.3d at 432 (citing Kotteakos v. United States, 328 U.S. 750, 773-74, 66 S.Ct. 1239, 1252-53, 90 L.Ed. 1557 (1946)). Defendant argues that the evidence was insufficient to convict him of the single conspiracy alleged in Count 1. Specifically, he contends that the government’s evidence showed, at best, that Defendant participated in one of numerous separate and independent conspiracies. This case is factually different from most of the preceding law analyzing whether a variance exists. See Kotteakos, 328 U.S. at 766-67, 66 S.Ct. at 1248-49; Edwards, 69 F.3d at 432-33; Powell, 982 F.2d at 1431; United States v. Mobile Materials, Inc., 881 F.2d 866, 872 (10th Cir.1989), cert. denied sub nom., Philpot v. United States, 493 U.S. 1043, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990). Previous cases discuss variances in the context of two or more defendants appealing their" }, { "docid": "17561819", "title": "", "text": "95 S.Ct. 207, 42 L.Ed.2d 164 (1974); Brulay v. United States, 383 F.2d 345, 350-51 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967); Strauss v. United States, 311 F.2d 926, 932 (5th Cir.), cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412 (1963). These cases reflect the fact that, “[b]ecause proof at trial need not, indeed cannot, be a precise replica of the charges contained in the indictment, this court has consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial.” United States v. Heimann, 705 F.2d 662, 666 (2d Cir.1983) (internal quotation marks omitted); accord United States v. Patino, 962 F.2d 263, 266 (2d Cir.1992). There is no indication in the record here that the evidence adduced at trial unfairly surprised the appellants or prejudiced them in any other way. If anything, the district court’s use of the “substantially the same” language avoided prejudice to the defendants by ensuring that they would not be convicted on the basis of an overt act that differed in any significant way from the overt acts specified in the indictment. D. Jury Instruction Regarding the Statute of Limitations The appellants’ final contention, closely related to the one we have just considered, is that the district court’s instruction on the statute of Imitations allowed the jury to convict on the basis of a potentially time-barred conspiracy. Again, the appellants’ argument is that the district court improperly allowed the jury to find the statute of limitations satisfied by an act “substantially the same” as one charged in the indictment. The relevant instruction, to which the appellants objected before the district court, is as follows: The fourth element the government must prove is that this prosecution is not barred or precluded by what is known as the statute of limitations.... So in this case the government must prove that the conspiracy agreement charged was in existence on July 2, 1988 and that at least one overt act in furtherance of the conspiracy was performed after" }, { "docid": "17561817", "title": "", "text": "agree on at least one overt act charged or substantially the same as one explicitly charged. (emphasis added). The appellants assert that the district court’s use of “substantially the same” constructively amended the indictment, in violation of the grand jury clause of the Fifth Amendment. The argument is without merit. To prevail on a constructive amendment claim, a defendant must demonstrate that either the proof at trial or the trial court’s jury instructions so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury’s indictment. See United States v. Zingaro, 858 F.2d 94, 98 (2d Cir.1988). In the case before us, the appellants do not claim that the district court permitted the government to introduce any evidence relating to conduct that differed significantly from that described in the indictment. Nor do the appellants claim that the district court’s instruction referred to any such evidence. In the absence of any indication that the evidence adduced at trial impermissibly broadened the basis of the appellants’ convictions, we cannot accept the argument that the district court’s mere use of the “substantially the same” language constructively amended the indictment. In fact, the district court’s instruction is entirely consistent with the well-established rule of this and other circuits that the overt act element of a conspiracy charge may be satisfied by an overt act that is not specified in the indictment, at least so long there is no prejudice to the defendant. See, e.g., United States v. Bryan, 122 F.3d 90, 93 (2d Cir.1997); United States v. Fassoulis, 445 F.2d 13, 19 (2d Cir.1971); United States v. Armone, 363 F.2d 385, 400-01 (2d Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 391, 392, 398, 17 L.Ed.2d 303 (1966); United States v. Negro, 164 F.2d 168, 173 (2d Cir.1947); see also United States v. Schurr, 794 F.2d 903, 907 n. 4 (3d Cir.1986); United States v. Morales, 677 F.2d 1, 2 (1st Cir.1982); United States v. Clay, 495 F.2d 700, 706 (7th Cir.), cert. denied, 419 U.S. 937," }, { "docid": "12828683", "title": "", "text": "east doubt on the jury’s finding that Defendant conspired to commit the crimes charged in Counts 26, 27, and 28. Cf. Morris, 612 F.2d at 490-91 (finding reversible error in court’s failure to resolve doubt about jury’s guilty verdict). We have determined that the jury’s notation can only reasonably mean that Defendant did not participate in the single broad conspiracy alleged in the indictment, and we have already examined the question of alternative reasonable interpretations. We cannot hypothesize an alternative interpretation, and have not been provided one by Defendant, which casts doubt on the finding that Defendant conspired to commit the offenses charged in Counts 26, 27, and 28. Defendant contends only that the notation meant the jury found him not guilty of the broader conspiracy charged in the indictment and guilty of a narrower conspiracy not charged. Defendant’s argument presents us with a variance issue, but it does not provide us with a reasonable alternative interpretation casting doubt on the jury’s verdict. Although the jury’s notation qualified the verdict on Count 1, we do not doubt that the jury was convinced beyond a reasonable doubt that Defendant participated in a conspiracy relating to Counts 26, 27, and 28. We therefore cannot conclude that the district court’s failure to inquire constitutes reversible error. We are left with the question of whether a variance occurred, and, if so, whether it substantially prejudiced Defendant’s rights. II. “A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.” United States v. Edwards, 69 F.3d 419, 432 (10th Cir.1995) (internal quotation marks omitted) (quoting Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979)), cert. denied sub nom., Chaplin v. United States, 517 U.S. 1243, 116 S.Ct. 2497, 135 L.Ed.2d 189 (1996); see United States v. Powell, 982 F.2d 1422, 1431 (10th Cir.1992), cert. denied, 508 U.S. 917, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). The variance is reversible error only if it affects the substantial rights of the accused. See Berger v. United States, 295 U.S. 78, 82, 55 S.Ct." }, { "docid": "7709897", "title": "", "text": "We find the cases cited by Kearney at best ambiguous on this point. The Marks court stated: While the commission of an overt act must be alleged and proven, the act itself does not comprise the offense. 364 F.Supp. at 1028. Accord, United States v. Westbrook, supra, 114 F.Supp. at 199. It does not necessarily follow from this statement that the same overt act which was alleged must be proved. We read the statement as merely distinguishing conspiracy cases brought under section 371 which requires an act in furtherance of the scheme, from those at common law where it was not necessary to allege or prove an overt act. Fiswick v. United States, 329 U.S. 211, 216 n.4, 67 S.Ct. 224, 227, 91 L.Ed. 196, 200 (1947). Under section 371 both the indictment and the proofs must indicate that the conspiracy did not remain in vitro. We do not believe either case cited by Kearney says more than that. Having rejected Kearney’s offered authority, we must then.determine if there is more substantial support for the Government’s proposition that it need not prove any of the overt acts alleged in the indictment. The Second Circuit in United States v. Negro, 164 F.2d 168 (2d Cir. 1947) announced the rule: [A]n overt act is not part of the crime in the sense that the act alleged must be proved, where another unalleged overt act is proved. Consequently, we think the substitution of proof of an unalleged for an alleged overt act does not constitute a fatal variance. At most, such a variance justifies a request for continuance because of surprise, (footnotes omitted) Id. at 173. This rule was reaffirmed in United States v. Armone, 363 F.2d 385, 400 (2d Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966). The Negro court also questioned an earlier holding of the Ninth Circuit that “it is fundamental that some overt act alleged must be proved,” Fredericks v. United States, 292 F. 856, 857 (9th Cir. 1923). That holding was recently reexamined by the Ninth Circuit itself in Brulay v. United States," }, { "docid": "12694835", "title": "", "text": "based on a theory not charged in the indictment. A variance occurs when the evidence presented at trial establishes facts different from those alleged in the indictment. Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979); United States v. Dickey, 736 F.2d 571, 581 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). In assessing a claim of a fatal variance, the pivotal inquiry is whether there has been a variance in proof which affects the substantial rights of the accused. United States v. Morris, 623 F.2d 145, 149 (10th Cir.), cert. denied, 449 U.S. 1065, 101 S.Ct. 793, 66 L.Ed.2d 609 (1980). This court has previously stated that such a variance occurs when the accused could not have anticipated from the indictment what evidence would be presented at trial. Id. “Another source of prejudice is the transference of guilt to an accused from incriminating evidence presented in connection with the prosecution of another in the same trial for a crime in which the accused did not participate.” Id. The indictment charged that “[t]he object of the defendants’ conspiracy was to knowingly and willfully hide substantial income from the sale and distribution of marijuana and to evade the payment of taxes on that and other income,” which was accomplished by creating the appearance that funds used to purchase the series of resi dences came from loans when, as defendants knew, the funds came from the sale and distribution of marijuana. Rec. vol. I, doc. 1, at 2. In setting out the overt acts committed in furtherance of the conspiracy, the indictment alleged that during 1977, defendants possessed, sold and distributed, and aided and abetted in the possession, sale and distribution, of marijuana. Id. at 3. Although Pinto was not charged with conspiring to sell drugs, she could anticipate from the indictment what evidence would be presented at trial, in particular her involvement in the alleged overt act of possessing, selling and distributing marijuana. United States v. Morris, 623 F.2d at 149. Also meritless is Pinto’s argument that she" }, { "docid": "7709899", "title": "", "text": "383 F.2d 345 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967). The court decided that Fredericks was no longer viable in light of new criminal statutes and Fed.R.Crim.P. 52(a) and announced that a variance between the single overt act alleged in an indictment and the one proved at trial constituted harmless error beyond a reasonable doubt. We agree with the aforementioned Circuits that the harmless error rule may properly be applied when an overt act in furtherance of a conspiracy proven at trial differs from any of the overt acts alleged in the indictment. Such a variance does not amount to an amendment of the indictment to alter an element of the alleged crime of the sort held impermissible in Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252, 257 (1960). The section 371 requirement that an overt act be committed need not necessarily be considered an element of the offense. “[A]n overt act is necessary to complete the offense,” Fiswick v. United States, supra, 329 U.S. at 216, 67 S.Ct. at 227, 91 L.Ed. at 200; it may, however, be considered apart from the offense “either an indispensable mode of corroborating the existence of the conspiracy or a device for affording a locus poenitentiae.” Braverman v. United States, 317 U.S. 49, at 53, 63 S.Ct. 99, at 101, 87 L.Ed. 23, at 28. Since the variance is not fatal per se, it must be examined in light of Fed.R. Grim.P. 52(a) to determine if it prejudiced defendant’s substantial rights. United States v. Somers, 496 F.2d 723, 743-46 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974). In this case, those rights are primarily fair notice and avoidance of double jeopardy. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240, 250 (1962). We do not find that Kearney was surprised by the introduction of evidence of acts different from those alleged in the indictment because, as will become clear, the difference in the facts was slight. We" }, { "docid": "22231739", "title": "", "text": "case evidence of overt acts was presented from which the jury could have found that the conspiracy continued through August or September. The question, therefore, is whether the failure to allege such overt acts in the indictment precludes the Government from showing the conspiracy continued beyond the last overt act alleged. We hold that it does not. Evidence of overt acts which occurred after a conspiracy was formed and which were related to the object of the conspiracy is admissible regardless of whether the overt acts are charged in the indictment. United States v. Clay, 495 F.2d 700, 706 (7th Cir. 1974), cert. denied, 419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164. Indeed, it has been held that a conviction for conspiracy may rest on proof of an overt act not charged in the indictment. Brulay v. United States, 383 F.2d 345, 350-51 (9th Cir. 1967), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478. It is not necessary for the Government to prove each overt act alleged. United States v. Vittoria, 284 F.2d 451 (7th Cir. 1960), overruled as to another ground, United States v. White, 405 F.2d 838, 848 n.16 (7th Cir. 1969) (en banc), rev’d on that ground, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 483 (1971). From these principles it is clear that the determination of a conspiracy’s duration for purposes of the hearsay exception must depend on what the Government is able to prove. Statements are not admissible if made after the last overt act proved but before an overt act averred but not proved; statements are admissible if made before the last overt act proved regardless of whether the overt act was averred. The question of whether Garland Jeffers remained a conspirator after his arrest still must be answered. It is generally held that once established a partnership in crime continues until fruition or some act is taken to disavow it or to defeat its purpose. Pinkerton v. United States, 328 U.S. 640, 646, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The arrest or incarceration of a conspirator may constitute" }, { "docid": "12790879", "title": "", "text": "of Robert Henderson; and, (3) the Court erred in admitting eight ounces of amphetamine identified as one-half of the one pound of amphetamine involved in the final sale transaction. Various secondary challenges have also been raised. Single versus Multiple Conspiracies At trial, the Government sought to establish that all defendants conspired, in one scheme, to distribute, and possess with intent to distribute, amphetamine. Each appellant now contends that the evidence adduced disclosed the existence of multiple conspiracies, rather than a single conspiracy. On this basis, they argue that their convictions should be reversed under Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). “A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.” Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979). Such a variance, however, is not fatal to the government’s case unless it affects the substantial rights of the accused. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). A prejudicial variance may occur where there is a “transference of guilt to an accused from incriminating evidence presented in connection with the prosecution of another in the same trial for a crime in which the accused did not participate.” United States v. Morris, 623 F.2d 145, 149 (10th Cir. 1980). Our analysis must begin with a determination of whether such a variance did, in fact, occur. “Most narcotics networks involve loosely knit vertically-integrated combinations.” United States v. Panebianco, 543 F.2d 447, 452-453 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977). The simple fact “that a number of separate transactions may have been involved . . . does not establish the existence of a number of separate conspiracies.” United States v. Parnell, 581 F.2d 1374, 1382 (10th Cir. 1978), cert. denied, sub nom., Cox v. United States, 439 U.S. 1076, 99 S.Ct. 852, 59 L.Ed.2d 44 (1979). Rather, it must normally be determined whether such activities constituted essential and integral steps toward the realization of" }, { "docid": "11775017", "title": "", "text": "listed in the indictment? E. Was the $2,500 \"finders’ fee” payment from Valley Fish to defendant Schurr part of the conspiracy proven at tried? . It is well settled that the government can prove overt acts not listed in the indictment, so long as there is no prejudice to the defendants thereby. United States v. Adamo, 534 F.2d 31, 38-39 (3d Cir.), cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976). See also United States v. U.S. Gypsum Company, 600 F.2d 414, 419 (3d Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979). There would appear to be no reason that the government could not satisfy its requisite showing under the statute of limitations by means of an overt act not listed in the indictment. Cf. Brulay v. United States, 383 F.2d 345, 350-51 (9th Cir.) (holding that a conspiracy conviction may \"rest upon proof of an overt act not charged in the indictment”), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967). See also United States v. Harris, 542 F.2d 1283, 1300 (7th Cir.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); United States v. Sellers, 603 F.2d 53, 56 (8th Cir.1979), vacated and remanded, 447 U.S. 932, 100 S.Ct. 3033, 65 L.Ed.2d 1127 (1980). The error was harmless to appellants, however. Indeed, if anything, it hurt the government by limiting the overt acts upon which the jury could rely in finding that the statute of limitations was satisfied. The government in fact proved overt acts within the statutory period: it proved periodic payments to Schurr and Rosetsky through intermediaries extending beyond February of 1979, hence into the statutory period, and it was apparently only through oversight that the Assistant United States Attorney who drafted the indictment did not refer in the indictment to periodic payments beyond 1978. . Put differently, the point is that had appellants known that they might be convicted on the basis of acts not listed in the indictment, they might have sought to controvert those acts on appeal. The trial" }, { "docid": "9437917", "title": "", "text": "explaining, “it is true we did not discuss this contention in our original decision: we thought it too specious to need discussion.” 242 F.2d at 496. In that case although a conspiracy was alleged to have begun on or about June 1951, the proof showed that it did not begin until November 1952. Despite the failure to prove the conspiracy for the full period alleged, this court held, “It does not follow that there was a fatal variance: the conspiracy proved fell within the period charged.” Id. at 497; see also United States v. Lamont, 565 F.2d 212, 223 n. 23 (2d Cir.1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978); United States v. Houlihan, 332 F.2d 8, 14 (2d Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37 (1964); United States v. Tramaglino, 197 F.2d 928, 932 (2d Cir.), cert. denied, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670 (1952). Other courts have been similarly relaxed about the effect of time allegations. See, eg., United States v. Davis, 679 F.2d 845, 852 (11th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 1198, 75 L.Ed.2d 441 (1983); Arnold v. United States, 336 F.2d 347 (9th Cir.1964), cert. denied, 380 U.S. 982, 85 S.Ct. 1348, 14 L.Ed.2d 275 (1965); United States v. Krepper, 159 F.2d 958, 964 (3d Cir.1946), cert. denied, 330 U.S. 824, 67 S.Ct. 865, 91 L.Ed. 1275 (1947); United States v. Leigh, 515 F.Supp. 405, 422-23 (S.D.Ohio 1981). We see no reason to alter this approach here. Since the fraudulent scheme that the government proved against Heimann fell within the period charged in the indictment, we conclude that there was no fatal variance. The district court’s contrary view was based on the prosecutor’s remarks to the jury. We think such reliance was misplaced. To begin with, in determining whether to vacate a conviction due to a variance, the relevant inquiry is whether “the evidence adduced at trial established] facts different from those alleged in an indictment”, Dunn v. United States, 442 U.S. 100,105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743" }, { "docid": "1721101", "title": "", "text": "to prevent being placed in jeopardy twice for the same offense.’” Bolton, 68 F.3d at 400 (quoting United States v. Staggs, 881 F.2d 1527, 1530 (10th Cir.1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990)). In this case, the indictment adequately informed Meyers of the charges against him; therefore, we hold it was valid on its face and cannot be attacked further. Notably, because conspiracy does not require the government to establish any overt acts, Meyers’ contention that the overt acts alleged in the indictment were false is irrelevant. See United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir.1994) (“Under the drug conspiracy statute, the government need not prove the commission of any overt act in furtherance of the conspiracy.”) (citing United States v. Shabani, — U.S. -, -, 115 S.Ct. 382, 385, 130 L.Ed.2d 225 (1994)). III. Improper Amendment of Indictment Meyers contends that the district court erred in denying his motion to dismiss on the grounds that the indictment was improperly amended by the proof at trial. Meyers asserts that the government presented, facts at trial which were materially and substantially different from the facts presented to the grand jury and that this variance is reversible error. A variance arises when the evidence presented at trial establishes facts which are different from those alleged in the indictment. Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193-94, 60 L.Ed.2d 743 (1979); United States v. Powell, 982 F.2d 1422, 1431 (10th Cir.1992), cert. denied, 507 U.S. 946, 113 S.Ct. 1356, 122 L.Ed.2d 736 (1993). However, no variance occurs when the government’s theory on which the case was tried is the same as that charged in the indictment. Dunn, 442 U.S. at 106, 99 S.Ct. at 2194. Moreover, even if a variance exists, we will not reverse unless the variance affects the defendant’s substantial rights. Powell, 982 F.2d at 1431; United States v. Harrison, 942 F.2d 751, 759 (10th Cir.1991) (“variance did not affect defendant’s right to a fair trial”). Here, the indictment charged that: On or about between January, 1994, through and" }, { "docid": "22561373", "title": "", "text": "cocaine. Thus, the district court properly deified Chaplin’s motion for judgment of acquittal. B. Variance and Multiple Conspiracy Jury Instruction Defendants contend that there was a fatal variance between the indictment, which alleged a single conspiracy, and the government’s proof at trial, which established the existence of multiple conspiracies. Specifically, Defendants contend that Chaplin’s drug activities constituted a separate, independent conspiracy to those of his codefend-ants and that evidence of this separate conspiracy created a prejudicial “spillover”. Additionally, Defendants contend the district court erred by failing to give a multiple conspiracy jury instruction. 1. “A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment.” Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979). However, a variance is not fatal to the government’s case unless the variance affects “the substantial rights of the accused.” Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). Accordingly, where a single conspiracy is charged in the indictment, and the government proves only multiple conspiracies, a defendant who suffers substantial prejudice must have his conviction reversed. Kotteakos v. United States, 328 U.S. 750, 773-74, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). Whether a single conspiracy existed is a fact question for the jury and we review the jury’s decision in a fight most favorable to the government. United States v. Powell, 982 F.2d 1422, 1431 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). In determining whether a single conspiracy existed, a focal point of the analysis is whether the alleged coeonspirators’ conduct exhibited interdependence. United States v. Daily, 921 F.2d 994, 1007 (10th Cir.1990), cert. denied, 502 U.S. 952, 112 S.Ct. 405, 116 L.Ed.2d 354 (1991). Interdependence exists where “each coeonspirators activities ‘constituted essential and integral steps toward the realization of a common, illicit goal’ ” Fox, 902 F.2d at 1514 (quoting United States v. Brewer, 630 F.2d 795, 799 (10th Cir.1980)). Defendants assert the evidence failed to show a single conspiracy because the evidence fails to" }, { "docid": "22231738", "title": "", "text": "made by one person as evidence against another; but where a statement is made by one co-conspirator in furtherance of an ongoing conspiracy, it may be introduced as evidence against other conspirators. Krulewitch v. United States, 336 U.S. 440, 443, 69 S.Ct. 716, 93 L.Ed. 790 (1949). A statement made after a conspiracy has ended is not admissible. Id. at 442, 69 S.Ct. 716. Defendants argue that the conspiracy ended prior to the conversation in July because the last overt act charged was in June. They argue that in any event Garland Jeffers could no longer have been a part of the conspiracy because he had been arrested, tried, convicted, and was in jail. In Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946), the Supreme Court held that statements of certain conspirators were not admissible against others because, even though the indictment charged that the conspiracy continued through the date of the indictment, the last overt act averred and proved occurred before the statements were made. In the present case evidence of overt acts was presented from which the jury could have found that the conspiracy continued through August or September. The question, therefore, is whether the failure to allege such overt acts in the indictment precludes the Government from showing the conspiracy continued beyond the last overt act alleged. We hold that it does not. Evidence of overt acts which occurred after a conspiracy was formed and which were related to the object of the conspiracy is admissible regardless of whether the overt acts are charged in the indictment. United States v. Clay, 495 F.2d 700, 706 (7th Cir. 1974), cert. denied, 419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164. Indeed, it has been held that a conviction for conspiracy may rest on proof of an overt act not charged in the indictment. Brulay v. United States, 383 F.2d 345, 350-51 (9th Cir. 1967), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478. It is not necessary for the Government to prove each overt act alleged. United States v. Vittoria," }, { "docid": "12694834", "title": "", "text": "and the defendant were members of the conspiracy; and 3) the hearsay statements were made in the course and in furtherance of the conspiracy. United States v. Esch, 832 F.2d 531, 537 (10th Cir.1987). There was substantial evidence of the existence of a conspiracy. Ritschel and Bono testified that they had purchased large quantities of marijuana from Lambert and each testified about obtaining marijuana which had been stored in defendants’ basement. Wells then testified that Pinto claimed ownership of the stolen marijuana. Wells’ testimony, which was not hearsay as to Pinto, linked Pinto to the drug trafficking, which was an integral part of the alleged conspiracy to evade taxes on income generated by the sale and distribution of marijuana. The trial court did not err in admitting the contested testimony. III. Defendant Pinto next claims that there was a fatal variance between the conspiracy as charged and the evidence adduced at trial, which she maintains indicated the existence of a second, uncharged conspiracy to possess, sell and distribute marijuana. Consequently, defendant argues, her convictions were based on a theory not charged in the indictment. A variance occurs when the evidence presented at trial establishes facts different from those alleged in the indictment. Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979); United States v. Dickey, 736 F.2d 571, 581 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). In assessing a claim of a fatal variance, the pivotal inquiry is whether there has been a variance in proof which affects the substantial rights of the accused. United States v. Morris, 623 F.2d 145, 149 (10th Cir.), cert. denied, 449 U.S. 1065, 101 S.Ct. 793, 66 L.Ed.2d 609 (1980). This court has previously stated that such a variance occurs when the accused could not have anticipated from the indictment what evidence would be presented at trial. Id. “Another source of prejudice is the transference of guilt to an accused from incriminating evidence presented in connection with the prosecution of another in the same trial for a crime in which" }, { "docid": "7709895", "title": "", "text": "Kearney appears clearly as a major figure in that conspiracy. Thus, we do not find a variance between the indictment and the proofs on this point. Kearney next argues that the Government failed to prove any of the fourteen overt acts alleged under Count I, the conspiracy count, of the indictment and that such a deficiency in proof constitutes a fatal variance from the indictment. In the district court, the Government responded to this argument by asserting that, even -assuming arguendo it had not proved any of the alleged overt acts, it had proved other overt acts in furtherance of the conspiracy. Proof of any overt act, it contended, is sufficient, regardless of its mention in the indictment. In this court, the Government would add a second string to its bow by insisting that its evidence in the district court in fact proved at least four of the overt acts. It also reiterates its argument that conviction for conspiracy may rest on proof of an overt act not alleged in the indictment. There is general agreement that the Government is not limited in its proof at trial to those overt acts alleged in the indictment. E. g., United States v. Quesada, 512 F.2d 1043, 1046 (5th Cir. 1975) U.S. appeal pending; United States v. Clay, 495 F.2d 700, 706 (7th Cir.), cert. denied, 419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164 (1974); Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965); Marcus v. United States, 20 F.2d 454, 456 (3d Cir. 1927). Moreover, the Government is under no obligation to prove every overt act alleged. United States v. Williams, 474 F.2d 1047 (5th Cir. 1973); United States v. Fellabaum, 408 F.2d 220, 223 (7th Cir.), cert. denied sub nom. Pyne v. United States, 396 U.S. 818, 90 S.Ct. 55, 24 L.Ed.2d 69 (1969). Kearney asserts, however, in his brief to this court, that “[a]t least one of the overt acts alleged in the indictment must be proven at the trial. United States v. Marks, 364 F.Supp. 1022 (D.C.Ky.1973); United States v. Westbrook, 114 F.Supp. 192 (D.C.Ark. 1953).”" }, { "docid": "1721102", "title": "", "text": "asserts that the government presented, facts at trial which were materially and substantially different from the facts presented to the grand jury and that this variance is reversible error. A variance arises when the evidence presented at trial establishes facts which are different from those alleged in the indictment. Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193-94, 60 L.Ed.2d 743 (1979); United States v. Powell, 982 F.2d 1422, 1431 (10th Cir.1992), cert. denied, 507 U.S. 946, 113 S.Ct. 1356, 122 L.Ed.2d 736 (1993). However, no variance occurs when the government’s theory on which the case was tried is the same as that charged in the indictment. Dunn, 442 U.S. at 106, 99 S.Ct. at 2194. Moreover, even if a variance exists, we will not reverse unless the variance affects the defendant’s substantial rights. Powell, 982 F.2d at 1431; United States v. Harrison, 942 F.2d 751, 759 (10th Cir.1991) (“variance did not affect defendant’s right to a fair trial”). Here, the indictment charged that: On or about between January, 1994, through and including November, 1994, in the District of Wyoming and elsewhere, DAVID MEYERS, MITCHELL MEYERS, and RICHARD FEDERICO, Defendants herein, and Carl Jones, did intentionally, knowingly, and unlawfully combine, conspire, confederate, and agree together, and with other persons, both known and unknown to the Grand Jury, to possess with the intent to distribute, and to distribute, marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (ROA, Vol. I, Tab 1 at 1-2). The indictment further alleged that marijuana was obtained from Arizona, Texas, and New Mexico, from Mitchell Meyers, Federico, and others at the direction of Meyers for distribution by him, id. at 2; Meyers would either personally transport the marijuana or arrange for others to do so, id.; and Meyers introduced Jones, or made arrangements for the introduction, to Meyers’ sources of marijuana with the intent that Jones begin transporting marijuana for him. Id. at 3. This is the same theory on which the case was tried and submitted to the jury. Therefore, we hold that there was no" }, { "docid": "7709898", "title": "", "text": "Government’s proposition that it need not prove any of the overt acts alleged in the indictment. The Second Circuit in United States v. Negro, 164 F.2d 168 (2d Cir. 1947) announced the rule: [A]n overt act is not part of the crime in the sense that the act alleged must be proved, where another unalleged overt act is proved. Consequently, we think the substitution of proof of an unalleged for an alleged overt act does not constitute a fatal variance. At most, such a variance justifies a request for continuance because of surprise, (footnotes omitted) Id. at 173. This rule was reaffirmed in United States v. Armone, 363 F.2d 385, 400 (2d Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966). The Negro court also questioned an earlier holding of the Ninth Circuit that “it is fundamental that some overt act alleged must be proved,” Fredericks v. United States, 292 F. 856, 857 (9th Cir. 1923). That holding was recently reexamined by the Ninth Circuit itself in Brulay v. United States, 383 F.2d 345 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967). The court decided that Fredericks was no longer viable in light of new criminal statutes and Fed.R.Crim.P. 52(a) and announced that a variance between the single overt act alleged in an indictment and the one proved at trial constituted harmless error beyond a reasonable doubt. We agree with the aforementioned Circuits that the harmless error rule may properly be applied when an overt act in furtherance of a conspiracy proven at trial differs from any of the overt acts alleged in the indictment. Such a variance does not amount to an amendment of the indictment to alter an element of the alleged crime of the sort held impermissible in Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252, 257 (1960). The section 371 requirement that an overt act be committed need not necessarily be considered an element of the offense. “[A]n overt act is necessary to complete the offense,” Fiswick v. United" }, { "docid": "17561818", "title": "", "text": "broadened the basis of the appellants’ convictions, we cannot accept the argument that the district court’s mere use of the “substantially the same” language constructively amended the indictment. In fact, the district court’s instruction is entirely consistent with the well-established rule of this and other circuits that the overt act element of a conspiracy charge may be satisfied by an overt act that is not specified in the indictment, at least so long there is no prejudice to the defendant. See, e.g., United States v. Bryan, 122 F.3d 90, 93 (2d Cir.1997); United States v. Fassoulis, 445 F.2d 13, 19 (2d Cir.1971); United States v. Armone, 363 F.2d 385, 400-01 (2d Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 391, 392, 398, 17 L.Ed.2d 303 (1966); United States v. Negro, 164 F.2d 168, 173 (2d Cir.1947); see also United States v. Schurr, 794 F.2d 903, 907 n. 4 (3d Cir.1986); United States v. Morales, 677 F.2d 1, 2 (1st Cir.1982); United States v. Clay, 495 F.2d 700, 706 (7th Cir.), cert. denied, 419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164 (1974); Brulay v. United States, 383 F.2d 345, 350-51 (9th Cir.), cert. denied, 389 U.S. 986, 88 S.Ct. 469, 19 L.Ed.2d 478 (1967); Strauss v. United States, 311 F.2d 926, 932 (5th Cir.), cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412 (1963). These cases reflect the fact that, “[b]ecause proof at trial need not, indeed cannot, be a precise replica of the charges contained in the indictment, this court has consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial.” United States v. Heimann, 705 F.2d 662, 666 (2d Cir.1983) (internal quotation marks omitted); accord United States v. Patino, 962 F.2d 263, 266 (2d Cir.1992). There is no indication in the record here that the evidence adduced at trial unfairly surprised the appellants or prejudiced them in any other way. If anything, the district court’s use of the “substantially the same” language avoided prejudice to the defendants by ensuring that they would not" } ]

[ { "docid": "23035766", "title": "", "text": "in making its decision and how any contradictory evidence balances out. Gavin v. Heckler, 811 F.2d at 1199. In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir.1975). Both administrative law judges found that Wilcutts is unable to return to his past relevant work. In his decision, the second ALJ recognized that the burden had shifted to the Commissioner. AR at 24. In so doing, the second ALJ cited Talbott v. Bowen, 821 F.2d 511 (8th Cir.1987). In Talbott, 821 F.2d at 514-15, Judge Lay wrote: If the ALJ finds that the claimant cannot return to his past relevant work, thé burden of proof shifts to the [Commissioner], who then has the duty to establish that the claimant is not disabled within the meaning of the Act. Lewis v. Heckler, 808 F.2d 1293, 1297 (8th Cir.1987); Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir.1985). In presenting evidence that a claimant is not disabled, the [Commissioner] must prove by medical evidence that the claimant has the residual functional capacity to do other kinds of work and that there are jobs available in the national economy that realistically suit the claimant. O’Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir.1993) In McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982)(en bane), the Court wrote that the most important issue in a disability determination is the issue of residual functional capacity. The residual functional capacity which must be found, wrote the Court, is the ability to do the requisite physical acts day in and day out, in the sometimes- competitive and stressful conditions in which real people work in the real world. Cf. Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989). Wilcutts, while conceding that he has a residual functional capacity for light work, argues that he should be found disabled because he is unable to read or write. Wilcutts bases this argument on the testimony of the vocational expert who testified that if one of the second ALJ’s hypothetical" } ]

[ { "docid": "18333921", "title": "", "text": "credibility determination was improper and that the ALJ’s finding regarding Gonzales’s residual functional capacity (RFC) was not supported by the medical evidence. The District Court reversed the ALJ, concluding “that the ALJ’s decision is not supported by the record in this case and fails to take into consideration [Gonzales’s] testimony regarding his limitations as well as the overwhelming evidence indicating that [Gonzales] is disabled.” Order of Sept. 26, 2005, at 5. The District Court directed the Commissioner to award SSDI and SSI benefits to Gonzales. The Commissioner now appeals. We review de novo the District Court’s determination of whether substantial evidence on the record as a whole supports the ALJ’s decision. See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.2005). Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the ALJ’s decision. See Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005). In our review, we consider the evidence that supports the ALJ’s decision, as well as the evidence that detracts from it, and we will uphold the ALJ’s decision if it is supported by substantial evidence on the record as a whole even if more than one conclusion could be drawn from the evidence. See id. “We do not reweigh the evidence presented to the ALJ,” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir.2003), and we defer to the ALJ’s determinations regarding the credibility of testimony, as long as those determinations are supported by good reasons and substantial evidence, See Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.2003). In determining whether a claimant is entitled to disability benefits, the Commissioner performs a five-step sequential analysis. 20 C.F.R. §§ 404.1520, 416.920. At the first step, the claimant must establish that he has not engaged in substantial gainful activity. The second step requires that the claimant prove he has a severe impairment that significantly limits his physical or mental ability to perform basic work activities. If, at the third step, the claimant shows that his impairment meets or equals a presumptively disabling impairment listed in the regulations, the" }, { "docid": "17421330", "title": "", "text": "a disability as defined by the Social Security Act; 2) Johnson did not meet or equal any of the listed impairments listed in Appendix 1, Subpart P, Regulation No. 4; and 3) Johnson’s past relevant work did not require the performance of work-related activities precluded by his physical and mental residual functional capacity. The ALJ denied Johnson’s application. On March 27, 2002, the Appeals Council denied Johnson’s request for review, making the ALJ’s decision the Commissioner’s final decision. Johnson sought judicial review of the Commissioner’s final decision. On September 15, 2003, a magistrate judge affirmed the Commissioner’s administrative decision. Johnson appeals that decision. II. We review de novo the district court’s decision to uphold the denial of social security benefits. Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir.2000). “Our review of the Commissioner’s decision ... is deferential, and we do not substitute our own view of the evidence for that of the Commissioner.” Kelley v. Barnhart, 372 F.3d 958, 960 (8th Cir.2004). We review the decision to ensure that it “is supported by substantial evidence in the record as a whole.” Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir.1996); see also Dixon v. Barnhart, 353 F.3d 602, 604 (8th Cir.2003). Substantial evidence is evidence that a reasonable mind would find adequate to support a decision, considering both evidence that detracts from and evidence that supports the Commissioner’s decision. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.2000). The mere fact that some evidence may support a conclusion opposite to that reached by the Commissioner does not allow this Court to reverse the decision of the ALJ. Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir.1996). “If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the decision of the Commissioner.” Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir.1996). In evaluating disability claims, we conduct a five-step sequential evaluation: 1) is the claimant engaging in substantial gainful activity; 2) does the claimant have severe impairment(s); (3) does the impairment or combination" }, { "docid": "8018389", "title": "", "text": "from doing her past relevant work, the ALJ found that Casey was not disabled and, thus, not entitled to benefits. The District Court affirmed that decision. II. On appeal, Casey contends that the District Court committed reversible error in affirming the ALJ’s decision because the ALJ (1) gave improper weight to medical opinions in the record, (2) improperly discredited Casey’s subjective complaints of pain, and (3) erred in determining Casey’s RFC. We review de novo the District Court’s decision affirming the agency’s denial of benefits. Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir.2007). In conducting this review, we consider whether the ALJ’s decision is supported by substantial evidence on the record as a whole. Id. “Substantial evidence is evidence that a reasonable mind would find adequate to support the ALJ’s conclusion.” Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir.2007). We will not disturb the denial of benefits so long as the ALJ’s decision falls within the available “ ‘zone of choice.’ ” Id. (quoting Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.2006)). “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" }, { "docid": "22594614", "title": "", "text": "employed in this position until 2005. Perkins has not worked full time since 2005, but she has worked part time at a thrift shop that she owns and has taken classes toward a masters degree. C. Medical History Perkins asserts that her impairments of fibromyalgia, hypertension, gastroesophageal reflux disease (“GERD”), chronic obstructive pulmonary disease (“COPD”), depression, and panic attacks constitute a disability with an onset date of December 12, 2005. Perkins’s medical history is set out in detail in the record, and we need not recount it here. II. DISCUSSION A. Standard of Review “ ‘We review de novo the District Court’s determination of whether substantial evidence on the record as a whole supports the ALJ’s decision.’ ” Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir.2009) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)). “ We will affirm the ALJ’s findings if supported by substantial evidence on the record as a whole.’ ” Id. (quoting Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir.1998)). “Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner’s conclusion.” Id. (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005)). “We must consider evidence that both supports and detracts from the ALJ’s decision, but we will not reverse an administrative deeision ‘simply because some evidence may support the opposite conclusion.’ ” Id. (quoting Goff, 421 F.3d at 789). “ ‘If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s decision.’ ” Id. (quoting Goff, 421 F.3d at 789). B. Perkins’s Claims on Appeal On appeal, Perkins claims that (1) the ALJ failed to give adequate weight to Perkins’s treating physician; (2) the ALJ failed to comply with the Commissioner’s policies in evaluating the severity of Perkins’s fibromyalgia; (3) the ALJ erred in finding statements not credible and in failing to properly apply the Polaski factors; (4) the ALJ erred when he declined to adopt a finding from the vocational expert;" }, { "docid": "22812417", "title": "", "text": "946, 950 (8th Cir.2004). We will uphold the ALJ’s decision to deny benefits if that decision is supported by substantial evidence in the record as a whole. See Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir.2007). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Id. We consider the evidence that both supports and detracts from the ALJ’s decision. Ellis v. Barnhart, 392 F.3d 988, 993 (8th Cir.2005). We will not reverse simply because some evidence supports a conclusion other than that reached by the ALJ. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir.2006). “If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ’s] findings, the court must affirm the [ALJ’s] decision.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2001). Likewise, “we defer to the ALJ’s determinations regarding the credibility of testimony, so long as they are supported by good reasons and substantial evidence.” Pelkey, 433 F.3d at 578 (quoting Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.2005)). The Social Security Administration follows a well-recognized, five-step process for considering disability claims. In step one, the ALJ decides whether the claimant is currently engaging in substantial gainful activity; if the claimant is working, he is not eligible for disability insurance benefits. 20 C.F.R. § 404.1520(b). In step two, the ALJ determines whether the claimant is suffering from a severe impairment. If the claimant is not suffering a severe impairment, he is not eligible for disability insurance benefits. 20 C.F.R. § 404.1520(c). At the third step, the ALJ evaluates whether the claimant’s impairment meets or equals one of the impairments listed in Appendix 1 of the regulations (the “listings”). 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant’s impairment meets or equals one of the listed impairments, he is entitled to benefits; if not, the ALJ proceeds to step four. 20 C.F.R. § 404.1520(d). At step four, the ALJ determines whether the claimant retains the “residual" }, { "docid": "23184023", "title": "", "text": "court remanded his case for further proceedings at the request of the Social Security Administration. On August 24, 2005, a second hearing was held before the ALJ. The ALJ concluded that the combination of Finch’s impairments was severe, but that he did not have an impairment or combination of impairments listed or medically equal to a listed impairment. The ALJ found that although Finch was unable to perform his past relevant work, there were jobs in the national economy that he could perform and thus concluded that Finch was not disabled. After the Appeals Council denied Finch’s request for review, he again filed a complaint in federal district court. The district court granted summary judgment to the Commissioner, affirming the ALJ’s decision. On appeal Finch argues that the Commissioner’s decision should be reversed because the ALJ failed to properly credit Finch’s subjective complaints of pain, did not properly evaluate the evidence in determining Finch’s residual functional capacity, and improperly substituted his own opinion for that of a medical examiner’s. II. We will uphold the Commissioner’s decision if it is supported by substantial evidence on the record as a whole. Harvey v. Barnhart, 368 F.3d 1013, 1015 (8th Cir. 2004). “Substantial evidence is ‘less than a preponderance but is enough that a reasonable mind would find it adequate to support’ the conclusion.” Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir.2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir.2002)). This standard of review requires us to consider the evidence that supports the Commissioner’s decision as well as the evidence that detracts from it. Eichelberger, 390 F.3d at 589. That we would have come to a different conclusion, however, is not a sufficient basis for reversal. Id. “If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the denial of benefits.” Mapes v. Chater, 82 F.3d 259, 262 (8th Cir.1996). A. Finch argues that the ALJ erred in assessing his credibility. The ALJ found that Finch’s complaints of pain were not entirely credible" }, { "docid": "2590676", "title": "", "text": "{“DOT”), such as Hand Packager and Laundry Worker. As a result, the ALJ denied benefits, and the Commissioner affirmed, making the ALJ’s decision the official decision of the Commissioner. On appeal to the district court, with respect to the denial of adult benefits, Moore argued that (1) the ALJ erred in failing to find that Moore met a certain disability listing based on mental retardation; (2) the ALJ’s hypothetical to the vocational expert misstated Moore’s residual functional capacity by failing to incorporate certain limitations found by two examining psychologists, Dr. Maddock and Dr. DeRoeck; and (3) the DOT descriptions of the jobs identified by the vocational expert were in conflict with certain limitations in the hypothetical. The district court held that the Commissioner’s decision was supported by substantial evidence. Now, on appeal to this Court, Moore only renews his challenges to the hypothetical and the jobs identified by the vocational expert. II. DISCUSSION “We review de novo a district court decision upholding the denial of social security benefits.” Lauer v. Apfel, 245 F.3d 700, 702 (8th Cir.2001). “Our role on review is to determine whether the Commissioner’s findings are supported by substantial evidence in the record as a whole.” Page v. Astrue, 484 F.3d 1040, 1042 (8th Cir.2007) (quotation omitted). “Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to support the Commissioner’s conclusion.” Id. “Our review extends beyond examining the record to find substantial evidence in support of the ALJ’s decision; we also consider evidence in the record that fairly detracts from that decision.” Cox v. Astrue, 495 F.3d 614, 617 (8th Cir.2007). Nevertheless, if it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ’s findings, we must affirm the ALJ’s decision. Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005). First, Moore contends that the medical opinions of Dr. Maddock and Dr. DeRoeck, the only two psychologists to examine him as an adult, demand a finding that he is in incapable of interacting with supervisors, coworkers, and the general public. The ALJ’s residual functional capacity" }, { "docid": "19972983", "title": "", "text": "his continued smoking amounts to a failure to follow a prescribed course of remedial treatment. See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997) (noting that a failure to follow prescribed treatment may be grounds for denying an application for benefits). This is not a case in which the correlation between claimant’s smoking and claimant’s impairment is not readily apparent. See Kelley, 133 F.3d at 589 (noting that there is no evidence that claimant’s muscoskeletal complaints would be affected by smoking cessation). To the contrary, there is no dispute that smoking has a direct impact on Mouser’s pulmonary impairments. Thus, the ALJ appropriately considered Mouser’s failure to stop smoking in making his credibility determination. See Wheeler, 224 F.3d at 895. Although the ALJ may have overstated Mouser’s daily activities, the record indicates that Mouser is generally able to care for himself. The record suggests that Mouser is not very active, yet he is able to complete chores at home when asked. Additionally, the record shows that his reliance on his parents for transportation is due to his license being revoked, rather than on any inability to drive. Based on the record as a whole, then, the ALJ’s credibility assessment was proper. B. Mouser contends that there was sufficient evidence in the record to alert the ALJ as to Mouser’s alleged mental impairment and that the ALJ’s failure to develop the record on this issue requires reversal. Although the ALJ must fairly and fully develop the record, Battles v. Shalala, 36 F.3d 43, 44 (8th Cir.1994), he “is not obliged ‘to investigate a claim not presented at the time of the application for benefits and not offered at the hearing as a basis for disability.’ ” Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir.2003) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir.1996)). There is no bright line rule indicating when the Commissioner has or has not adequately developed the record; rather, such an assessment is made on a case-by-case basis. Battles, 36 F.3d at 45. Mouser did not raise the issue of his mental capacity until his" }, { "docid": "9869231", "title": "", "text": "ALJ’s decision was erroneous because: (1) the ALJ failed to give her treating physician’s opinion great or controlling weight; and (2) the ALJ incorrectly concluded she maintained the RFC to perform her past relevant work. The district court disagreed, finding “extensive and substantial evidence supporting the ALJ’s decision.” Addendum at 21. On September 28, 2007, the district court entered an order affirming the ALJ’s decision denying Pate-Fires SSI benefits. Pate-Fires timely appealed to this court. II “This court reviews de novo a district court’s denial of social security benefits.” Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir.2006). The court’s task is to determine whether the ALJ’s decision “complies with the relevant legal requirements and is supported by substantial evidence in the record as a whole.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir.2008). “Substantial evidence is ‘less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.’ ” Maresh, 438 F.3d at 898 (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). In reviewing the record, the court “must consider both evidence that supports and evidence that detracts from the Commissioner’s decision.” Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir.2007). An individual must be disabled in order to qualify for SSI under the Act and the accompanying regulations. Disability is defined as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A five-step test is used to determine whether an individual qualifies for SSI. 20 C.F.R. § 416.920(a)(4). Steps one through three require the claimant to prove (1) she is not currently engaging in substantial gainful activity, (2) she suffers from a severe impairment, and (3) her disability meets or equals a listed impairment. See, e.g., Van Vickle v. Astrue, 539 F.3d 825, 827 (8th Cir.2008). If a claimant does not suffer from a" }, { "docid": "10127966", "title": "", "text": "court “must affirm the Commissioner’s decision if it is supported by substantial evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.2006). “Substantial evidence is less than a preponderance but ... enough that a reasonable mind would find it adequate to support the conclusion.” Milam v. Colvin, 794 F.3d 978, 983 (8th Cir.2015) (alternation in original). On review, “we must consider evidence that both supports and detracts from the ALJ’s decision.” Id. “If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the decision of the Commissioner.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir.2003). In order for an individual to qualify for benefits under the Social Security Act and the accompanying regulations, he or she must be disabled. Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir.2010). “Disability is defined as the inability ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.’ ” Id. (quoting 42 U.S.C. § 1382c(a)(3)(A)). Disability is determined according to a five-step process, considering whether: (1) the claimant was employed; (2) he was severely impaired; (3) his impairment was, or was comparable to, a listed impairment; (4) he could perform past relevant work; and if not, (5) if he could perform any other kind of work. See 20 C.F.R. §§ 404.1520(a), 416.920(a) (2016). In this case, the ALJ, after completing the proper five-step process, acknowledged Chaney suffered from various medial issues, but determined Chaney was less-than-fully credible and could perform light work. Consequently, the ALJ determined Chaney was not disabled and was not entitled to benefits. Chaney contends there is not substantial evidence in the record as a whole supporting the Commissioner’s decision because: (1) the ALJ drew erroneous inferences from the record, and without these inferences the ALJ would not have found Chaney less-than-fully" }, { "docid": "23081973", "title": "", "text": "record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s decision.” Id. at 879 (citing Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005)). In order to qualify for benefits under the Social Security Act and the accompanying regulations, an individual must be disabled. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.2009). “Disability is defined as the inability ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.’ ” Id. (quoting 42 U.S.C. § 1382c(a)(3)(A)). To determine disability, the ALJ follows the familiar five-step process, considering whether: (1) the claimant was employed; (2) she was severely impaired; (3) her impairment was, or was comparable to, a listed impairment; (4) she could perform past relevant work; and if not, (5) 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" }, { "docid": "23248627", "title": "", "text": "the Appeals Council denied Buckner’s request, making the ALJ’s decision the final decision of the Commissioner. Buckner thereafter filed a complaint in the district court, seeking review of the Commissioner’s final decision. The district court affirmed the Commissioner’s decision, concluding that substantial evidence supported the determination that Buckner was not disabled. II. Discussion We review de novo the district court’s decision affirming the ALJ’s denial of social security benefits. Hulsey v. Astrne, 622 F.3d 917, 922 (8th Cir.2010). In doing so, we will consider whether the ALJ’s decision “is supported by substantial evidence on the record as a whole.” Id. “Substantial evidence means less than a preponderance, but sufficient evidence that a reasonable person would find adequate to support the decision.” Id. “We will not disturb the denial of benefits so long as the ALJ’s decision falls within the available zone of choice. 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.” Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir.2008) (internal quotations and citations omitted). “Rather, if, after reviewing the record, we find that it is possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the decision of the Commissioner.” Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.2000) (internal quotations, alteration, and citations omitted). A. Severity of Mental Impairments Buckner first contends that the ALJ’s finding that his mental impairments — specifically, his depression and anxiety — were not severe was not supported by substantial evidence on the record as a whole. In particular, Buckner asserts that the ALJ ignored evidence of Buckner’s treatment for depression, Buckner’s complaints that the treatment was not effective, and Buckner’s testimony that he sometimes isolated himself due to the depression. Moreover, Buckner notes that Dr. Sutton’s psychological evaluation “concluded that [Buckner] would have mild difficulties maintaining social functioning and concentration, persistence, and pace.” Because these symptoms have “more than a minimal impact” on Buckner’s ability to do basic work activities, Buckner maintains" }, { "docid": "20463733", "title": "", "text": "to SSI payments. In reaching this conclusion, the ALJ evaluated the medical evidence in light of McNamara’s subjective allegations of pain, see Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984), and determined that McNamara’s testimony regarding her symptoms and limitations was not fully credible and not supported by the record. The ALJ found that McNamara’s allegations at the hearing were contradicted by the conclusions of Dr. Adelman and Dr. Wy and her own Function Report. The Appeals Council denied review of the ALJ’s decision on November 27, 2007, resulting in a final decision of the Commissioner. Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir.2008). McNamara sought review by the district court. The court ruled that the ALJ permissibly concluded that McNamara’s physical limitations did not rise to the degree of severity required by the regulations for a finding of disability, because her ailments did not impose a significant work-related limitation of function. II. We review de novo a district court’s decision affirming the denial of social security benefits. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.2005). We will affirm if the Commissioner’s decision is “supported by the substantial evidence on the record as a whole.” Id. (internal quotation omitted); see 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation omitted). “We consider both evidence that detracts from and evidence that supports the Commissioner’s decision.” England v. Astrue, 490 F.3d 1017, 1019 (8th Cir.2007) (internal quotation omitted). If substantial evidence supports the decision, then we may not reverse, even if inconsistent conclusions may be drawn from the evidence, and even if we may have reached a different outcome. England, 490 F.3d at 1019. McNamara challenges the ALJ’s finding at step three of the five-step process for determining disability. She contends that the ALJ applied incorrect legal standards and ignored substantial evidence in the record in determining that her physical and mental impairments did not meet the required" }, { "docid": "23081972", "title": "", "text": "his benefits decision. Halverson timely appealed the district court’s decision. II We review de novo a district court’s denial of social security benefits. Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir.2007). The court’s task is to determine whether the ALJ’s decision “complies with the relevant legal requirements and is supported by substantial evidence in the record as a whole.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir.2008). Substantial evidence is merely such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Substantial evidence on the record as a whole, however, requires a more scrutinizing analysis. In the review of an administrative decision, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight. Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. Heino v. Astrue, 578 F.3d 873, 878 (8th Cir.2009) (citing Jackson v. Bowen, 873 F.2d 1111, 1113 (8th Cir.1989)). “If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s decision.” Id. at 879 (citing Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005)). In order to qualify for benefits under the Social Security Act and the accompanying regulations, an individual must be disabled. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.2009). “Disability is defined as the inability ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.’ ” Id. (quoting 42 U.S.C. § 1382c(a)(3)(A)). To determine disability, the ALJ follows the familiar five-step process, considering whether: (1) the claimant was employed; (2) she was severely impaired; (3) her impairment was, or was comparable to, a listed impairment; (4) she could perform past relevant work; and if not, (5)" }, { "docid": "20703013", "title": "", "text": "to perform light work and that jobs suitable for Ash existed in significant numbers in the national economy. The Appeals Council denied Ash’s request for review. The district court upheld the Commissioner’s decision. Ash appeals, arguing that the ALJ’s conclusion is not supported by substantial evidence. II. We review de novo the district court’s decision affirming the denial of social security benefits and will affirm “if the Commissioner’s decision is supported by the substantial evidence on the record as a whole.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir.2010) (internal quotation omitted). “Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.” McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.2000). To determine whether substantial evidence exists, “we consider evidence that supports the Commissioner’s conclusion, along with evidence that detracts from that conclusion.” Carlson v. Astrue, 604 F.3d 589, 592 (8th Cir.2010). “If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the decision of the Commissioner.” Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir.2004) (internal quotation omitted). We review any disputed legal conclusions of the ALJ de novo. Carlson, 604 F.3d at 592. The Administration has updated its regulations to use the term “intellectual disability” rather than “mental retardation,” but the agency resolved this case under the former regulations, so we use the terminology that appears in the briefs and administrative decision. The ALJ analyzed Ash’s claim under the five-step sequential evaluation process used to consider disability claims. 20 C.F.R. §§ 404.1520, 416.920; see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). At step one, the ALJ noted that Ash had not engaged in substantial gainful activity since June 26, 2010, the alleged onset date of her disability. At step two, the ALJ found that Ash had severe impairments in the form of neck and back pain, headaches, mild mental retardation, and depression. Next, at step three, the ALJ concluded" }, { "docid": "10127965", "title": "", "text": "moving machinery; and unskilled work where the interpersonal contact • is incidental to the work performed, complexity of tasks is learned and performed by rote with few variables and little judgment, and the supervision required is simple, direct, and concrete. The ALJ determined Chaney could not perform any past relevant work and was limited to light work. Accordingly, the ALJ determined Chaney had not been under a disability from January 1, 2004, until the date of his hearing. Chaney again requested review, which the Appeals Council denied. Pursuant to 42 U.S.C. § 405(g), Chaney filed the present action seeking judicial review of the ALJ’s decision. The district court agreed with the ALJ’s decision, finding although the ALJ made some errors in drawing inferences from the record, the errors were harmless because substantial evidence in the record as a whole supported a finding Chaney was not entitled to disability benefits. Chaney appeals. II We review de novo the district court’s decision affirming the denial of benefits. Byes v. Astrue, 687 F.3d 913, 915 (8th Cir.2012). The court “must affirm the Commissioner’s decision if it is supported by substantial evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.2006). “Substantial evidence is less than a preponderance but ... enough that a reasonable mind would find it adequate to support the conclusion.” Milam v. Colvin, 794 F.3d 978, 983 (8th Cir.2015) (alternation in original). On review, “we must consider evidence that both supports and detracts from the ALJ’s decision.” Id. “If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the decision of the Commissioner.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir.2003). In order for an individual to qualify for benefits under the Social Security Act and the accompanying regulations, he or she must be disabled. Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir.2010). “Disability is defined as the inability ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" }, { "docid": "22812416", "title": "", "text": "After the ALJ issued his decision, Perks retained new counsel and sought review of the ALJ’s decision with the Appeals Council. This new counsel submitted a brief of the issues along with additional evidence in the form of a narrative statement from Dr. Russell and a 2007 MRI report. In its denial of Perks’s request for review, the Appeals Council noted that it had received and considered the additional evidence but “found that this information does not provide a basis for changing the [ALJ’s] decision.” In this appeal, Perks raises two issues for review. First, he argues that substantial evidence does not support the ALJ’s findings as to his RFC as it conflicts with the medical determination of consultative physician Dr. Honghiran and is otherwise in conflict with the evidence in record. Second, he claims that the Appeals Council improperly denied review of his case after he submitted additional evidence. II. We review de novo the district court’s decision to uphold the Commissioner’s denial of disability benefits. Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir.2004). We will uphold the ALJ’s decision to deny benefits if that decision is supported by substantial evidence in the record as a whole. See Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir.2007). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Id. We consider the evidence that both supports and detracts from the ALJ’s decision. Ellis v. Barnhart, 392 F.3d 988, 993 (8th Cir.2005). We will not reverse simply because some evidence supports a conclusion other than that reached by the ALJ. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir.2006). “If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ’s] findings, the court must affirm the [ALJ’s] decision.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2001). Likewise, “we defer to the ALJ’s determinations regarding the credibility of testimony, so long as they are supported by good reasons and" }, { "docid": "19972984", "title": "", "text": "due to his license being revoked, rather than on any inability to drive. Based on the record as a whole, then, the ALJ’s credibility assessment was proper. B. Mouser contends that there was sufficient evidence in the record to alert the ALJ as to Mouser’s alleged mental impairment and that the ALJ’s failure to develop the record on this issue requires reversal. Although the ALJ must fairly and fully develop the record, Battles v. Shalala, 36 F.3d 43, 44 (8th Cir.1994), he “is not obliged ‘to investigate a claim not presented at the time of the application for benefits and not offered at the hearing as a basis for disability.’ ” Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir.2003) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir.1996)). There is no bright line rule indicating when the Commissioner has or has not adequately developed the record; rather, such an assessment is made on a case-by-case basis. Battles, 36 F.3d at 45. Mouser did not raise the issue of his mental capacity until his case was under review in the district court. While there is some evidence in the record indicating that Mouser might be mentally deficient — such as his enrollment in special education classes during high school and the assistance he occasionally receives from his parents with reading and pronouncing difficult words — there is also evidence to suggest he is mentally competent. Mouser held semi-skilled jobs for twenty-five years. He testified that he gets along well with people, is able to count money, follow directions, and focus on the task at hand. Although we have previously faulted the Commissioner for not sufficiently developing the record where the issue was not explicitly raised by the claimant, those cases involved far more evidence indicating that further development was necessary than the facts before us now. See Gasa-way v. Apfel, 187 F.3d 840 (8th Cir.1999); Thompson v. Sullivan, 878 F.2d 1108 (8th Cir.1989). In Gasaway, for example, the record before the ALJ not only showed that the claimant was in special education classes in high school, but included her" }, { "docid": "8018388", "title": "", "text": "engaged in substantial gainful activity. Second, the ALJ concluded that Casey was severely impaired by the combination of “fibromyal-gia, status post left knee surgery, back pain secondary to past compression fracture and depression.” J.A. at 9. At the third step, the ALJ determined that Ca sey’s impairments did not meet or equal any of the impairment listings that create a presumption of disability. Thus, the ALJ continued to the fourth step, where she considered Casey’s residual functional capacity (RFC) and past relevant work. The ALJ determined that Casey had the RFC to perform work “with the following limitations: occasionally lift ten pounds, frequently lift less than ten pounds, sit a total of six hours in an eight hour day, stand/walk at least two hours in an eight hour day and occasionally climb, balance, stoop, kneel, crouch and crawl.” Id. at 13. The ALJ concluded that even with these limitations, Casey could return to her past work as an employment clerk, administrative assistant, or program manager. Id. at 15. Because Casey’s impairments did not prevent her from doing her past relevant work, the ALJ found that Casey was not disabled and, thus, not entitled to benefits. The District Court affirmed that decision. II. On appeal, Casey contends that the District Court committed reversible error in affirming the ALJ’s decision because the ALJ (1) gave improper weight to medical opinions in the record, (2) improperly discredited Casey’s subjective complaints of pain, and (3) erred in determining Casey’s RFC. We review de novo the District Court’s decision affirming the agency’s denial of benefits. Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir.2007). In conducting this review, we consider whether the ALJ’s decision is supported by substantial evidence on the record as a whole. Id. “Substantial evidence is evidence that a reasonable mind would find adequate to support the ALJ’s conclusion.” Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir.2007). We will not disturb the denial of benefits so long as the ALJ’s decision falls within the available “ ‘zone of choice.’ ” Id. (quoting Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.2006))." }, { "docid": "6446849", "title": "", "text": "fingering due to a mild tremor. The VE said a person in that position could perform approximately fifty percent of light or medium jobs and would have a “wide range” of employment options. The VE noted, however, that if he took McCoy’s testimony at the hearing as fully credible — including his claims that he could only walk fifty feet and could not wear shoes — McCoy would likely not be able to find work in the national economy. On July 19, 2007, the ALJ issued a written opinion finding that McCoy was not disabled within the meaning of the Social Security Act. The Appeals Council denied McCoy’s request for review. McCoy filed a complaint in federal district court challenging the denial of his claim. The district court affirmed, and McCoy appeals. II. DISCUSSION We review de novo a district court decision upholding a denial of Social Security disability benefits. Bowman v. Barnhart, 310 F.3d 1080, 1083 (8th Cir. 2002). However, we review the underlying ALJ decision under a deferential “substantial evidence” standard, and will affirm if, based on the record as a whole, a reasonable mind could accept the ALJ’s decision. Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir.2008). “If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the denial of benefits.” Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir.2009) (quotation omitted). The SSA has established a five-step sequential process for evaluating disability claims. In step one, the ALJ decides whether the claimant is currently engaging in substantial gainful activity; if the claimant is working, he is not eligible for disability insurance benefits. 20 C.F.R. § 404.1520(b). In step two, the ALJ determines whether the claimant is suffering from a severe impairment. If the claimant is not suffering a severe impairment, he is not eligible for disability insurance benefits. 20 C.F.R. § 404.1520(c). At the third step, the ALJ evaluates whether the claimant’s impairment meets or equals one of the impairments listed in Appendix 1 of the regulations (the" } ]

[ { "docid": "903756", "title": "", "text": "We of course accord careful scrutiny to intra-family transactions. See Dii-iin v. United States, 433 F.2d 1097, 1103 (5th Cir. 1970). . Taxpayers urge that these businesses involved little risk and therefore needed little capital. The apparent failure of Forest Estates, however, belies their assertion. The ventures incurred development expenses running into six figures and required as much as two or three years to begin receiving any revenues by selling lots. These considerations demonstrate the inadequacy of, for example, the initial capi-talizations of $5,100 for Cairo Developers, $9,000 for Slappey, and $21,000 for Sherwood. Thus the capitalization factor favors the government with respect to transfers made to those corporations upon their formation. In regard to transfers made at later times, however, we agree with appellants that net worth, not initial capitalization, provides the relevant data. See Tomlinson v. The 1661 Corp., 377 F.2d 291, 299 n. 18 (5th Cir. 1967). At the time of transfer E. Sherwood’s net worth was $117,000. That figure would become much greater if we were to take into account the appreciated value of Sherwood’s real estate holdings or if we added the amounts of the earlier purported debts (originating from transfers C and D) that we reclassify as equity. We need not decide the propriety of these steps, for we agree with appellants that in any event Sherwood’s capitalization at the time of transfer E was adequate. . The Mixon factors not discussed in text carry little weight in this case. The source of principal and interest payments and the questionable availability of similar loans from outside lenders provide slight support to the government. That most of(the obligations possessed fixed maturity dates would favor appellants had they not consistently ignored those dates. Similarly, the individuals’ legal right to enforce payment does not aid appellants in light of the apparent understanding, as manifested in observable behavior, that they would not enforce those rights. The lenders already controlled corporate management; that they derived no more control as a result of the ostensible loans does not cut against the equity classification. See Dillin v. United States, 433 F.2d" } ]

[ { "docid": "16979362", "title": "", "text": "money or money’s worth” but also that “[t]his is true even if there was an implied agreement exactly as found by the Tax Court.” (Petitioner’s Memorandum of Law at 3). We agree with the tax court that where, as here, there is an implied agreement between the parties that the grantee would never be called upon to make any payment to the grantor, as, in fact, actually occurred, the note given by the grantee had “no value at all.” We emphatically disagree with the petitioner’s view of the law as it applies to the facts of this case. As the Supreme Court has remarked, the family relationship often makes it possible for one to shift tax incidence by surface changes of ownership without disturbing in the least his dominion and control over the subject of the gift or the purposes for which the income from the property is used. Commissioner v. Culbertson, 337 U.S. 733, 746, 69 S.Ct. 1210, 1216, 93 L.Ed. 1659 (1949). There can be no doubt that intent is a relevant inquiry in determining whether a transaction is “bona fide”. As another panel of this Court held recently, construing a parallel provision of the Internal Revenue Code, in a case involving an intrafamily transfer: when the bona fides of promissory notes is at issue, the taxpayer must demonstrate affirmatively that “there existed at the time of the transaction a real expectation of repayment and an intent to enforce the collection of the indebtedness.” Estate of Van Anda v. Commissioner, 12 T.C. 1158, 1162 [1949 WL 301] (1949), aff'd per curiam, 192 F.2d 391 (2d Cir.1951). See also Estate of Labombarde v. Commissioner, 58 T.C. 745, 754-55 [1972 WL 2474] (1972), aff'd, 73-2 U.S. Tax Cas. (CCH) ¶ 12953 (1st Cir.1973). Flandreau v. Commissioner, 994 F.2d 91, 93 (2d Cir.1993) (case involving I.R.C. § 2053(c)(1)). In language strikingly apposite to the situation here, the court stated: it is appropriate to look beyond the form of the transactions and to determine, as the tax court did here, that the gifts and loans back to decedent were “component parts of" }, { "docid": "15449107", "title": "", "text": "It is safe to say that, with the possible exception of gifts causa mortis, the present transfer tax scheme eschews subjective intent determinations in favor of the objective requirements set forth in the statutes. Therefore, section 2036(a) permits the conclusion that a split-interest transfer was testamentary when, and if, the objective requirement that the transfer be for an adequate and full consideration is not met. Section 2036(a) does not, however, permit a perceived testamentary intent, ipse dixit, to determine what amount constitutes an adequate and full consideration. Unless and until the Congress declares that intrafamily transfers are to be treated differently, see I.R.C. §§ 2701-2704 (West Supp.1996) discussed below, we must rely on the objective criteria set forth in the statute and Treasury Regulations to determine whether a sale comes within the ambit of the exception to section 2036(a). The. identity of the transferee or the perceived testamentary intent of the transferor, provided all amounts transferred are identical, cannot result in transfer tax liability in one ease and a tax free transfer in another. F. Former Section 2036(c) and Chapter 14 The final obstacle preventing our acceptance of the government’s construction of section 2036(a) is Congress’ enactment of section 2036(c) in 1987 and its retroactive repeal and enactment of chapter 14 in 1990. Although we are not faced with the need to determine the applicability of the 1990 estate freeze provisions to the facts of this case, we find that the abuses of the type which the government perceives in the challenged transaction were addressed by Congress when it passed section former 2036(c) in 1987 and, subsequently in 1990, when it chose to replace former section 2036(c) with the special valuation rules of chapter 14. Congress enacted former section 2036(c) in 1987 to address certain estate “freezing techniques” enabling taxpayers to take advantage of the assumptions underlying the valuation tables in the Treasury Regulations. Omnibus Budget Reconciliation Act of 1987, Pub.L. No. 100-203,101 Stat. 1330-1431; see also Mitchell M. Gans, GRIT’s, GRAT’s and GRUT’s: Planning and Policy, 11 Va. Tax Rev. 761, 791 & n.63 (1992). Under the terms of" }, { "docid": "15449102", "title": "", "text": "“sale” in section 2036 is not, as the government seems to suggest, an additional wicket reserved exclusively for intrafamily transfers that otherwise meet the Treasury Regulations’ valuation criteria. The government implicitly asserts that the term “bona fide” in section 2036(a) permits the IRS to declare that the same remainder interest, sold for precisely the same (actuarial) amount but to different purchasers, would constitute adequate and full consideration for a third party but not for a family member. This construction asks too much of these two small words. In addition to arguing that “adequate and full consideration” means different things for gift tax purposes than it does for estate tax purposes, the government would also have us give “bona fide” not only a different construction depending on whether we are applying the gift or estate tax statute, but also different meanings depending upon the identity of the purchaser in a section 2036(a) transaction. We do not believe that Congress intended, nor do we believe the language of the statute supports, such a construction. Certainly an intrafamily transfer-like any other-must be a “bona fide sale” for the purposes of section 2036(a). But assuming, as we must here, that a family member purports to pay the appropriate value of the remainder interest, the only possible grounds for challenging the legitimacy of the transaction are whether the transferor actually parted with the remainder interest and the transferee actually parted with the requisite adequate and full consideration. Accordingly, we do not find convincing the government’s position that the term “bona fide” as used in section 2036(a) presents an adequate basis for imposing a dual system of valuation under the statute. E. IntraFamily Transactions At oral argument the government pursued a line of reasoning not fully anticipated by their briefs Gradow /no-bona-fide-transaction theory. Stated concisely, the government asserted that, because the purpose of section 2036(a) is to reach those split-interest transfers that amount to testamentary substitutes and include the underlying asset’s value in the gross estate, the adequate and full consideration for intrafamily transfers-which are generally testamentary in nature because the interest passes “to the natural" }, { "docid": "15449101", "title": "", "text": "would have us take the opposite approach. The government argues that we should ignore the economic reality of a remainder interest sale and decide the tax issue based solely on the identity of the parties. To the extent the “bona fide” qualifier in section 2036(a) has any independent meaning beyond requiring that neither transfers nor the adequate and full consideration for them be illusory or sham, it might be construed as permitting legitimate, negotiated commercial transfers of split-interests that would not otherwise qualify as adequate consideration using the actuarial table values set forth in the Treasury Regulations to qualify under the exception. Such a result comports with the same construction the term is given in the gift tax regulations. The gift tax regulations prevent an “ironclad” operation of the gift tax statute from transforming every bad bargain into a gift by the losing party. See Weller v. Commissioner, 38 T.C. 790, 806-07, 1962 WL 1166 (1962); 6 Bittker & Lokken, Federal Taxation, at 121-31. See also id. at 126-20. Accordingly, the term “bona fide” preceding “sale” in section 2036 is not, as the government seems to suggest, an additional wicket reserved exclusively for intrafamily transfers that otherwise meet the Treasury Regulations’ valuation criteria. The government implicitly asserts that the term “bona fide” in section 2036(a) permits the IRS to declare that the same remainder interest, sold for precisely the same (actuarial) amount but to different purchasers, would constitute adequate and full consideration for a third party but not for a family member. This construction asks too much of these two small words. In addition to arguing that “adequate and full consideration” means different things for gift tax purposes than it does for estate tax purposes, the government would also have us give “bona fide” not only a different construction depending on whether we are applying the gift or estate tax statute, but also different meanings depending upon the identity of the purchaser in a section 2036(a) transaction. We do not believe that Congress intended, nor do we believe the language of the statute supports, such a construction. Certainly an intrafamily" }, { "docid": "16979363", "title": "", "text": "in determining whether a transaction is “bona fide”. As another panel of this Court held recently, construing a parallel provision of the Internal Revenue Code, in a case involving an intrafamily transfer: when the bona fides of promissory notes is at issue, the taxpayer must demonstrate affirmatively that “there existed at the time of the transaction a real expectation of repayment and an intent to enforce the collection of the indebtedness.” Estate of Van Anda v. Commissioner, 12 T.C. 1158, 1162 [1949 WL 301] (1949), aff'd per curiam, 192 F.2d 391 (2d Cir.1951). See also Estate of Labombarde v. Commissioner, 58 T.C. 745, 754-55 [1972 WL 2474] (1972), aff'd, 73-2 U.S. Tax Cas. (CCH) ¶ 12953 (1st Cir.1973). Flandreau v. Commissioner, 994 F.2d 91, 93 (2d Cir.1993) (case involving I.R.C. § 2053(c)(1)). In language strikingly apposite to the situation here, the court stated: it is appropriate to look beyond the form of the transactions and to determine, as the tax court did here, that the gifts and loans back to decedent were “component parts of single transactions.” Id. (citation omitted). The tax court concluded that the evidence “viewed as a whole” left the “unmistakable impression” that regardless of how long decedent lived following the transfer of her house, the entire principal balance of the mortgage note would be forgiven, and the Maxwells would not be required to pay any of such principal. Id. The petitioner’s reliance on Haygood v. Commissioner, 42 T.C. 936, 1964 WL 1247 (1964), not followed by Rev.Rul. 77-299, 1977-2 C.B. 343 (1977), Kelley v. Commissioner, 63 T.C. 321, 1974 WL 2687 (1974), not followed by Rev.Rul. 77-299, 1977-2 C.B. 343 (1977), and Wilson v. Commissioner, 64 T.C.M. (CCH) 583, 1992 WL 201812 (1992), is misplaced. Those cases held only that intent to forgive notes in the future does not per se disqualify such notes from constituting valid consideration. In contrast, in the case at hand, the decedent did far more than merely “indieate[] an intent to forgive the indebtedness in the future.” Wilson, 64 T.C.M. (CCH) 583, 584 (1992). In Haygood, Kelley, and Wilson, the question" }, { "docid": "15449069", "title": "", "text": "part of a testamentary plan designed to shield most of the estate from taxation. The Melton estate argued that a sale of a remainder interest for its actuarial value comes -within the “bona fide sale for an adequate and full consideration” exception to section 2036(a) and therefore the ranch was properly excluded from the gross estate. The magistrate judge issued a report recommending that the government’s motion be granted. The district court, without any discussion or explanation, overruled the estate’s objections to the magistrate judge’s report, accepted, approved, and adopted all the magistrate judge’s findings and conclusions, and entered judgment for the government. The magistrate judge, observing that the “classic case” envisioned by section 2036(a) was “a purported gift with a retained life estate in the donor,” rejected the Melton estate’s contention that the sale of the remainder interest in the ranch for its actuarial value constituted a “bona fide sale for adequate and full consideration,” and opined that the date-of-death value of the ranch-less the consideration paid by the sons-must be included in the gross estate. The magistrate judge’s conclusion was premised on two principal bases. First, the magistrate judge found persuasive the United States Claims Court’s decision in Gradow v. United States, 11 Cl.Ct. 808 (1987), aff'd, 897 F.2d 516 (Fed. Cir.1990), and embraced its determination that, for the purposes of section 2036(a), the value received by the decedent must be compared to.the value of the entire underlying property rather than the present value of the future interest transferred. Second, the magistrate judge concluded that the sale of the remainder interest was not a “bona fide sale” as envisioned by the exception to section 2036(a), noting that “[ajlthough death was not imminent in 1984, it is reasonable to assume that Melton contemplated his own death and the disposition of his estate at the time of the transfer of his homestead to his sons in July, 1984.” Accordingly, the magistrate judge, viewing the evidence “as a whole,” concluded that the series of transactions between Melton and his sons constituted “a single transaction intended to avoid the payment of estate" }, { "docid": "15449106", "title": "", "text": "estate taxes.” Id. (citation omitted). In 1976, Congress amended section 2035 to omit the contemplation of death provision, placing in its stead an absolute rule including in the gross estate all gifts made by the decedent within three years of death. The congressional' intent-relevant to the present case as well--was patent: “Congress was troubled by the inordinate number of lawsuits by taxpayers who attempted to establish life motives for transfers otherwise taxable under the statute. The statutory change in section 2035 bore a rational relationship to a legitimate congressional purpose: eliminating factbound determinations, hinging upon subjective motive.” Estate of Ekins v. Commissioner, 797 F.2d 481, 486 (7th Cir.1986) (citing H.R.Rep. No. 94-1380, 94th Cong., 2d Sess. 12 (1976), reprinted in 1976 U.S.C.C.A.N. 2897, 3366) (emphasis added)); Hope, 691 F.2d at 788 n. 3 (same). Section 2035 was amended again in 1981 to eliminate the three year rule, subject to certain exceptions, for persons dying after 1981. The Economic Recovery Act of 1981, Pub.L. 97-34, Title IV, §§ 403(b)(3)(B), 424(a), 95 Stat. 301, 317; § 2035(d)(1). It is safe to say that, with the possible exception of gifts causa mortis, the present transfer tax scheme eschews subjective intent determinations in favor of the objective requirements set forth in the statutes. Therefore, section 2036(a) permits the conclusion that a split-interest transfer was testamentary when, and if, the objective requirement that the transfer be for an adequate and full consideration is not met. Section 2036(a) does not, however, permit a perceived testamentary intent, ipse dixit, to determine what amount constitutes an adequate and full consideration. Unless and until the Congress declares that intrafamily transfers are to be treated differently, see I.R.C. §§ 2701-2704 (West Supp.1996) discussed below, we must rely on the objective criteria set forth in the statute and Treasury Regulations to determine whether a sale comes within the ambit of the exception to section 2036(a). The. identity of the transferee or the perceived testamentary intent of the transferor, provided all amounts transferred are identical, cannot result in transfer tax liability in one ease and a tax free transfer in another. F." }, { "docid": "16979352", "title": "", "text": "2036(a) because it was a bona fide sale for full and adequate consideration — , and assessed a deficiency against the Estate to adjust for the difference between the fair market value of the property at the time of decedent’s death ($550,000) and the reported $210,000. The Estate appealed to the tax court, which, after a trial on stipulated facts, affirmed the Commissioner’s ruling, holding: On this record, bearing in mind petitioner’s burden of proof, we hold that, notwithstanding its form, the substance of the transaction calls for the conclusion that decedent made a transfer to her son and daughter-in-law with the understanding, at least implied, that she would continue to reside in her home until her death, that the transfer was not a bona fide sale for an adequate and full consideration in money or money’s worth, and that the lease represented nothing more than an attempt to add color to the characterization of the transaction as a bona fide sale. There are two questions before us: Did the decedent retain possession or enjoyment of the property following the transfer. And if she did, was the transfer a bona fide sale for an adequate and full consideration in money or money’s worth. II. Section 2036(a) provides in pertinent part: The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death— (1) the possession or enjoyment of, or the right to the income from, the property, 26 U.S.C. § 2036(a). In the case of real property, the terms “possession” and “enjoyment” have been interpreted to mean “the lifetime use of the property.” United States v. Byrum, 408 U.S. 125, 147, 92 S.Ct. 2382, 2395, 33" }, { "docid": "21366387", "title": "", "text": "same point taxwise under either or both. Petitioner took the position before the Tax Court that none of the interest of Mrs. Vardell in the community property was includible because its transfer under the election to which decedent was put constituted a bona fide sale for an adequate and full consideration in money or money’s worth within the meaning of § 2036. Alternatively, if there was less than a full consideration, it was urged that decedent was entitled to a credit under § 2043(a) of the 1954 Revenue Code, 26 U.S.C.A., § 2043(a), which in effect allows a credit for the amount of the consideration for a transfer, where it is less than full consideration. The gross estate under this section includes only the excess of the fair market value of the property over the value of the consideration received therefor by a decedent where a transfer has been made under §§ 2035 to 2038, inclusive, and § 2041, of Title 26. The Tax Court disposed of the case by holding the transfer by Mrs. Vardell of her one-half interest in the community to have been incomplete until her death, and that her community was includible in her gross estate under § 2036. This holding was based on the power of disposition vested in Mrs. Var-dell by the terms of the will which rendered the remainder contingent as to property. The law of Texas dictates the type of property interest involved, here a life estate, see Footnote ( ), supra, and this transaction falls squarely within the terms of § 2036. The Tax Court missed the mark however in failing to apply § 2043(a). The government concedes that this property, if not includible under § 2033, and we have held that it is not, is includible under § 2036. And we hold, contrary to the contention of the taxpayer, that the transfer was not for a full consideration under § 2036. We put aside any question as to gift tax since it is admitted by the government that the gift tax collected was not due. Nor are we concerned with" }, { "docid": "15449103", "title": "", "text": "transfer-like any other-must be a “bona fide sale” for the purposes of section 2036(a). But assuming, as we must here, that a family member purports to pay the appropriate value of the remainder interest, the only possible grounds for challenging the legitimacy of the transaction are whether the transferor actually parted with the remainder interest and the transferee actually parted with the requisite adequate and full consideration. Accordingly, we do not find convincing the government’s position that the term “bona fide” as used in section 2036(a) presents an adequate basis for imposing a dual system of valuation under the statute. E. IntraFamily Transactions At oral argument the government pursued a line of reasoning not fully anticipated by their briefs Gradow /no-bona-fide-transaction theory. Stated concisely, the government asserted that, because the purpose of section 2036(a) is to reach those split-interest transfers that amount to testamentary substitutes and include the underlying asset’s value in the gross estate, the adequate and full consideration for intrafamily transfers-which are generally testamentary in nature because the interest passes “to the natural objects of one’s bounty in the next generation”-must be measured against the entire value of the underlying asset in order to accomplish section 2036(a)’s purpose. This argument is necessarily at odds with Gradow’s “fundamental principles of grammar” approach that rested on a construction of the bona fide sale exception that did not purport to distinguish between either the identity or the subjective intent of the parties. We reject the government’s prof fered construction as not supported by the statutory language. Moreover, a policy-based argument to preclude intrafamily transfers of split-interests for full actuarial value if the transaction appears to have been undertaken in contemplation of death embraces a concept that the Congress chose to abandon twenty years ago-the notion that the subjective intent of an asset holder should determine the tax consequences of his transfer. Given the similarity between the government’s argument and the old gift-in-contemplation-of-death scheme, a brief review is appropriate. Recognizing that the most obvious way to defeat the estate tax would be through inter vivos gifts, the estate tax, from its inception," }, { "docid": "15449134", "title": "", "text": "life estate was not transferred for an adequate and full consideration-there would nevertheless be no inclusion of the fee interest in three-fifths of the trust corpus in Maria Allen's estate if she lived more than three years after her transfer of the life estate; if she did not live so long, the fee interest in the three-fifths of the trust corpus would be included in her estate by virtue of section 2035(a) as section 2035(d)(2) would prevent application of the section 2035(d)(1) exemption. . The Third Circuit likewise had \"great difficul(y understanding how [such a] transaction could be abusive.\" D’Ambrosio, 101 F.3d at 316. . The situation in Texas not so long ago was aptly described by a colorful lawyer-whose name now unfortunately escapes memory-as one in which the phrase \"rich Texan” metamorphosed almost overnight from a redundancy to an oxymoron. . The government conceded at oral argument: \"If you accept that all that is to be valued is the residue [remainder interest], which is the taxpayer’s position here-or the estate's position-we don’t dispute that, for purposes of this case, its value was accurately computed by application of the tables. Rather, we’re saying that, in this context a different property should be valued.... We’re not suggesting that it’s a valuation question, we're looking at it from a different point of view.” . Although stopping short of embracing a position that an intrafamily transfer can never meet the requirements of the bona fide sale exception, the only situation in which the government could conceive of an intrafamily transfer qualifying was a Friedman-type situation where the family members’ interests are actively adverse. See Estate of Friedman, 40 T.C. 714, 1963 WL 1403 (1963) (involving settlement of a contentious will dispute). .We find no merit in the government's contention that the only logical way to make the government \"whole\" as contemplated by section 2036(a) is to include the entire value of the underlying asset. That which would make the estate \"whole\" is indeed, as the government observed, that which puts the government in the same position as if the transaction had never occurred." }, { "docid": "15449075", "title": "", "text": ".sale. Con- ■ sequently, the sale of a remainder interest for its actuarial value, although such value represents the fair market value of the remainder interest, raises the question of whether the seller has been adequately compensated for the transfer of the underlying property to the remainderman. If the actuarial value of the remainder interest does not represent adequate compensation for the transfer of the underlying property to the remainderman, the taxpayer may be subject to both the gift tax and the estate tax.... If the taxpayer holds the retained interest until death, section 2036(a) of the [Code] pulls the underlying property back into the taxpayer’s gross estate, unless the transfer is a bona fide sale for adequate and full consideration.” Martha W. Jordan, Sales of Remainder Interests: Reconciling Gradow v. United States and Section 2702, 14 Va. Tax Rev. 671, 673 (1995). Both parties agreé that, for the purposes of the gift tax (section 2512 of the Code), consideration equal to the actuarial value of the remainder interest constitutes adequate consideration. See also Treas. Reg. § 25.2512-5(A). For estate tax purposes, however, authorities are split. Commentators have generally urged the same construction should apply, see, e.g., Jordan, supra; Steven A. Horowitz, Economic Reality In Estate Planning: The Case for Remainder Interest Sales, 73 Taxes 386 (1995); Jeffrey N. Pennell, Cases Addressing Sale of Remainder Wrongly Decided, 22 Est. Plan. 305 (1995), and the Third Circuit has held that “adequate and full consideration” under section 2036(a) is determined in reference to the value of the remainder interest transferred, not the value of the full fee simple interest in the underlying property. D'Ambrosio v. Commissioner, 101 F.3d 309 (3d Cir.1996), cert. denied, - U.S.-, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997). On the other hand, Gradow v. United States, 11 Cl.Ct. 808 (1987), aff'd, 897 F.2d 516 (Fed.Cir.1990), and its faithful progeny Pittman v. United States, 878 F.Supp. 833 (E.D.N.C.1994), and D’Ambrosio v. Commissioner, 105 T.C. 252, 1995 WL 564078 (1995), rev’d 101 F.3d 309 (3d Cir.1996), cert. denied, - U.S.-, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997), have stated that" }, { "docid": "15449104", "title": "", "text": "objects of one’s bounty in the next generation”-must be measured against the entire value of the underlying asset in order to accomplish section 2036(a)’s purpose. This argument is necessarily at odds with Gradow’s “fundamental principles of grammar” approach that rested on a construction of the bona fide sale exception that did not purport to distinguish between either the identity or the subjective intent of the parties. We reject the government’s prof fered construction as not supported by the statutory language. Moreover, a policy-based argument to preclude intrafamily transfers of split-interests for full actuarial value if the transaction appears to have been undertaken in contemplation of death embraces a concept that the Congress chose to abandon twenty years ago-the notion that the subjective intent of an asset holder should determine the tax consequences of his transfer. Given the similarity between the government’s argument and the old gift-in-contemplation-of-death scheme, a brief review is appropriate. Recognizing that the most obvious way to defeat the estate tax would be through inter vivos gifts, the estate tax, from its inception, contained a provision including in the gross estate certain inter vivos transfers “intended to take effect in possession or enjoyment” at or after the decedent’s death and those made “in contemplation of death.” 5 Bittker & Lokken, supra, at 126-30 (citing Revenue Act of 1916, Pub.L. No. 271, 39 Stat. 756). Although the Federal Gift Tax, enacted in 1932, reduced the tax avoidance possible through the use of inter vivos transfers, its lower rates and separate exemptions continued the need for estate tax treatment of gifts made in contemplation of death. Id. at 126-31. Accordingly, Congress enacted the predecessor to section 2035 “to reach inter vivos transfers of property used as substitutes for testamentary dispositions.” Hope v. United States, 691 F.2d 786, 790 (5th Cir.1982) (citing United States v. Wells, 283 U.S. 102, 115-20, 51 S.Ct. 446, 451-52, 75 L.Ed. 867 (1931)). Death was “ ‘contemplated’ within- the meaning of the statutory presumption if the dominant motive for the transfer [was] the creation of a substitute for testamentary disposition designed to avoid the imposition of" }, { "docid": "15449141", "title": "", "text": "agreed to monthly payments without otherwise altering the terms of the note. . Melton, in fact, assigned the note in Decern-her 1986 in partial payment of a $231,444 debt he owed The Melton Company. . Unless, of course, Congress provides otherwise. See, e.g., I.R.C. § 2035(a) & (d)(2) (West 1989); I.R.C. §§ 2701-2704 (West Supp.1996). . And, where taxable, gifts are made within three years of death, the amount of gift tax paid thereon is also added to the gross estate under section 2035(c). . Estate of Shafer v. Commissioner, 80 T.C. 1145, 1983 WL 14846 (1983), aff'd, 749 F.2d 1216 (6th Cir.1984), is more appropriately seen as the type of transaction in which the decedent, in an intrafamily transfer, attempted a form-over-substance maneuver. In Shafer, the decedent \"had the grantors execute the deed so as to convey a remainder interest to [the children] as tenants in common while retaining a life estate for himself.” Shafer, 749 F.2d at 1221. Accordingly, the decedent's estate argued that there was no \"transfer” by the decedent to his children triggering section 2036(a). Id. The Tax Court held that, because the decedent furnished the entire consideration for the property which was subsequently \"unbundled” by the seller to accommodate the children's remainder interest, the decedent should be charged with making a \"transfer” with a \"retained” life estate, regardless of the properly law niceties. Shafer, 80 T.C. at 1162-63. The Sixth Circuit affirmed, observing that “the inclusion or circumvention of the intermediate step should not make a difference in the estate tax consequences of the transaction.” Shafer, 749 F.2d at 1221; see also Gordon v. Commissioner, 85 T.C. 309, 324-25, 1985 WL 15384 (1985) (stating that, \"[i]n the context of a simultaneous, joint acquisition from a third party ... formally separate steps in an integrated and interdependent series that is focused on a particular end result will not be afforded independent significance in situations in which an isolated examination of the steps will not lead to a determination reflecting the actual overall result of the series of steps.”). . Nor was there any evidence that his" }, { "docid": "15449070", "title": "", "text": "gross estate. The magistrate judge’s conclusion was premised on two principal bases. First, the magistrate judge found persuasive the United States Claims Court’s decision in Gradow v. United States, 11 Cl.Ct. 808 (1987), aff'd, 897 F.2d 516 (Fed. Cir.1990), and embraced its determination that, for the purposes of section 2036(a), the value received by the decedent must be compared to.the value of the entire underlying property rather than the present value of the future interest transferred. Second, the magistrate judge concluded that the sale of the remainder interest was not a “bona fide sale” as envisioned by the exception to section 2036(a), noting that “[ajlthough death was not imminent in 1984, it is reasonable to assume that Melton contemplated his own death and the disposition of his estate at the time of the transfer of his homestead to his sons in July, 1984.” Accordingly, the magistrate judge, viewing the evidence “as a whole,” concluded that the series of transactions between Melton and his sons constituted “a single transaction intended to avoid the payment of estate taxes,” tainting the sale of the remainder interest in the ranch and precluding the transaction from being “bona fide” under section 2036(a). Discussion I. The case below was decided on cross-motions for summary judgment and on stipulated facts. A grant of summary judgment is subject to de novo review. Browning v. City of Odessa, 990 F.2d 842, 844 (5th Cir.1993). Where, as here, the essential facts are not in dispute, our review is limited to whether the government or the Melton estate is entitled to judgment as a matter of law. Arkwright-Boston Mfrs. Mut. Ins. Co. v. Aries Marine Corp., 932 F.2d 442, 444 (5th Cir.1991). ' Central to this case is section 2036(a) of the Code, which provides: “The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (iexcept in case of a bona fide sale for an adequate and fall consideration in money or money’s worth), by trust or otherwise, under which" }, { "docid": "15449137", "title": "", "text": "three-year inclusion rule under the current formulation provided the transfer constituted a gift and was not a bona fide sale for an adequate and full consideration. See note 12, supra. Section 2035(c) includes in the gross estate the amount of any gift tax paid by decedent (or his estate) on any gift by decedent (or his spouse) after 1976 and during the three years before the decedent's death. Melton’s 1984 deed was not a taxable gift because it was for an adequate and full consideration as determined by the applicable tables under the regulations, as the government concedes (nor was it within three years of his death). . Some commentators embrace portions of the government's position.regarding testamentary intent and section 2036(a) by concluding that the nonadversarial aspect of intrafamily transfers taints them as necessarily donative. See, e.g., Jordan, Sales of Remainder Interests, at 717 (“While it may be the case that the consideration received in a non-arm's length transfer is sufficient to prevent depletion of the taxpayer's gross estate, the donative character of the transaction combined with the taxpayer’s retention of an interest in the property is nevertheless sufficient to make the transfer testamentary in nature.”). We believe, however, that such a view is a misconstruction of 2036(a). The safeguards concerning sham transfers and sham consideration, combined with congressional prerogative to eliminate perceived abuses, see I.R.C. §§ 2701-2704, counsel against reading back into the statute what was removed statutorily in 1976. . These provisions are (with minor, irrelevant exceptions) inapplicable to transfers made on or before October 8, 1990. P.L. 101-508, sec. 11602(e), 104 Stat. 1388-500. . “An ‘estate freeze' is a technique that has the effect of limiting the value of property held by an older generation at its current value and passing any appreciation in the property to a younger generation. Generally, the older generation retains income from, or control over, the property. To effect a freeze, the older generation transfers an interest in the property that is likely to appreciate while retaining an interest in the property that is less likely to appreciate. Because the value of" }, { "docid": "15449099", "title": "", "text": "holder successfully “freezes” the value of the transferred remainder at its date-of-transfer value. Accordingly, any post-transfer appreciation of the remainder interest over and above the appreciation percentage anticipated by the actuarial tables passes to the re-mainderman free of the estate tax. But, of course, this is a problem only if the proceeds of the sale are not invested in assets which appreciate as much (or depreciate as little) as the remainder. Moreover, those who recall the Great Depression, as well as more recent times, know that assets frequently do not appreciate. Indeed, Melton’s ranch did not appreciate, but rather at his death was worth less than eighty-two percent of its value when the remainder was sold. Finally, to the extent that this “freeze” concern is legitimate, we note, as discussed infra, that Congress, through the passage in 1987 of former section 2036(c) and, later, its 1990 repeal and the enactment then of section 2702, has spoken to the issue. D. Section 2036(a)’s Bona Fide Sale Requirement The magistrate judge below, and the government at oral argument, asserted that the requirement that a sale for adequate and full consideration be “bona fide” under section 2036(a) takes on a heightened significance in the context of intrafamily transfers. “Although the presumption in an intrafamily transfer is that the transfer between related parties is a gift, the presumption that an intrafamily transaction is gratuitous ‘may be rebutted by an affirmative showing that there existed at the time of the transaction a real expectation of repayment and intent to enforce the collection of the indebtedness.’ ” Estate of Musgrove v. United States, 33 Fed. Cl. 657, 662 (1995) (citations omitted); accord Kincaid v. United States, 682 F.2d 1220, 1225-26 (5th Cir.1982); Slappey Drive Ind. Park v. United States, 561 F.2d 572, 584 n. 21 (5th Cir.1977); Dillin v. United States, 433 F.2d 1097, 1103 (5th Cir.1970). Heightened scrutiny serves the purpose of allowing inquiry beyond form to the substance of transactions in order to determine the appropriate tax consequences. But here, where the intrafamily transaction comports in substance with the government’s own regulations, the government" }, { "docid": "15449136", "title": "", "text": "But where the transferor’s estate re ceives the full actuarial value of the transferred interest-an amount, as discussed above, that the Treasury Regulations assume will compound to reach the full value of the fee interest by the transferor's death-the government is made whole. If the entire underlying asset is also pulled back into the estate, the government comes out ahead,- for the section 2043(a) offset given for the amount paid when the remainder is transferred fails to recognize the interest assumptions underlying the actuarial tables. . The 1976 amendments also unified the rate schedules between the estate and gift taxes. Tax Reform Act of 1976, Pub.L. 94-455, 90 Stat. 1848.' . Under section 2035(d), however, the three-year rule of section 2035(a) continues to apply to a transfer of an interest included in the gross estate under sections 2036-2038, the sections that address transfers with retained interests, those taking effect at death, and revocable transfers. Accordingly, a transfer within three years of death of a retained life estate, as in Allen, would be subject to the three-year inclusion rule under the current formulation provided the transfer constituted a gift and was not a bona fide sale for an adequate and full consideration. See note 12, supra. Section 2035(c) includes in the gross estate the amount of any gift tax paid by decedent (or his estate) on any gift by decedent (or his spouse) after 1976 and during the three years before the decedent's death. Melton’s 1984 deed was not a taxable gift because it was for an adequate and full consideration as determined by the applicable tables under the regulations, as the government concedes (nor was it within three years of his death). . Some commentators embrace portions of the government's position.regarding testamentary intent and section 2036(a) by concluding that the nonadversarial aspect of intrafamily transfers taints them as necessarily donative. See, e.g., Jordan, Sales of Remainder Interests, at 717 (“While it may be the case that the consideration received in a non-arm's length transfer is sufficient to prevent depletion of the taxpayer's gross estate, the donative character of the transaction" }, { "docid": "15449135", "title": "", "text": "for purposes of this case, its value was accurately computed by application of the tables. Rather, we’re saying that, in this context a different property should be valued.... We’re not suggesting that it’s a valuation question, we're looking at it from a different point of view.” . Although stopping short of embracing a position that an intrafamily transfer can never meet the requirements of the bona fide sale exception, the only situation in which the government could conceive of an intrafamily transfer qualifying was a Friedman-type situation where the family members’ interests are actively adverse. See Estate of Friedman, 40 T.C. 714, 1963 WL 1403 (1963) (involving settlement of a contentious will dispute). .We find no merit in the government's contention that the only logical way to make the government \"whole\" as contemplated by section 2036(a) is to include the entire value of the underlying asset. That which would make the estate \"whole\" is indeed, as the government observed, that which puts the government in the same position as if the transaction had never occurred. But where the transferor’s estate re ceives the full actuarial value of the transferred interest-an amount, as discussed above, that the Treasury Regulations assume will compound to reach the full value of the fee interest by the transferor's death-the government is made whole. If the entire underlying asset is also pulled back into the estate, the government comes out ahead,- for the section 2043(a) offset given for the amount paid when the remainder is transferred fails to recognize the interest assumptions underlying the actuarial tables. . The 1976 amendments also unified the rate schedules between the estate and gift taxes. Tax Reform Act of 1976, Pub.L. 94-455, 90 Stat. 1848.' . Under section 2035(d), however, the three-year rule of section 2035(a) continues to apply to a transfer of an interest included in the gross estate under sections 2036-2038, the sections that address transfers with retained interests, those taking effect at death, and revocable transfers. Accordingly, a transfer within three years of death of a retained life estate, as in Allen, would be subject to the" }, { "docid": "15449100", "title": "", "text": "argument, asserted that the requirement that a sale for adequate and full consideration be “bona fide” under section 2036(a) takes on a heightened significance in the context of intrafamily transfers. “Although the presumption in an intrafamily transfer is that the transfer between related parties is a gift, the presumption that an intrafamily transaction is gratuitous ‘may be rebutted by an affirmative showing that there existed at the time of the transaction a real expectation of repayment and intent to enforce the collection of the indebtedness.’ ” Estate of Musgrove v. United States, 33 Fed. Cl. 657, 662 (1995) (citations omitted); accord Kincaid v. United States, 682 F.2d 1220, 1225-26 (5th Cir.1982); Slappey Drive Ind. Park v. United States, 561 F.2d 572, 584 n. 21 (5th Cir.1977); Dillin v. United States, 433 F.2d 1097, 1103 (5th Cir.1970). Heightened scrutiny serves the purpose of allowing inquiry beyond form to the substance of transactions in order to determine the appropriate tax consequences. But here, where the intrafamily transaction comports in substance with the government’s own regulations, the government would have us take the opposite approach. The government argues that we should ignore the economic reality of a remainder interest sale and decide the tax issue based solely on the identity of the parties. To the extent the “bona fide” qualifier in section 2036(a) has any independent meaning beyond requiring that neither transfers nor the adequate and full consideration for them be illusory or sham, it might be construed as permitting legitimate, negotiated commercial transfers of split-interests that would not otherwise qualify as adequate consideration using the actuarial table values set forth in the Treasury Regulations to qualify under the exception. Such a result comports with the same construction the term is given in the gift tax regulations. The gift tax regulations prevent an “ironclad” operation of the gift tax statute from transforming every bad bargain into a gift by the losing party. See Weller v. Commissioner, 38 T.C. 790, 806-07, 1962 WL 1166 (1962); 6 Bittker & Lokken, Federal Taxation, at 121-31. See also id. at 126-20. Accordingly, the term “bona fide” preceding" } ]

[ { "docid": "22765778", "title": "", "text": "Justice White delivered the opinion of the Court. In United States v. Knotts, 460 U. S. 276 (1983), we held that the warrantless monitoring of an electronic tracking device (“beeper”) inside a container of chemicals did not violate the Fourth Amendment when it revealed no information that could not have been obtained through visual surveillance. In this case, we are called upon to address two questions left unresolved in Knotts: (1) whether installation of a beeper in a container of chemicals with the consent of the original owner constitutes a search or seizure within the meaning of the Fourth Amendment when the container is delivered to a buyer having no knowledge of the presence of the beeper, and (2) whether monitoring of a beeper falls within the ambit of the Fourth Amendment when it reveals information that could not have been obtained through visual surveillance. I In August 1980 Agent Rottinger of the Drug Enforcement Administration (DEA) learned that respondents James Karo, Richard Horton, and William Harley had ordered 50 gallons of ether from Government informant Carl Muehlenweg of Graphic Photo Design in Albuquerque, N. M. Muehlenweg told Rottinger that the ether was to be used to extract cocaine from clothing that had been imported into the United States. The Government obtained a court order authorizing the installation and monitoring of a beeper in one of the cans of ether. With Muehlenweg’s consent, agents substituted their own can containing a beeper for one of the cans in the shipment and then had all 10 cans painted to give them a uniform appearance. On September 20, 1980, agents saw Karo pick up the ether from Muehlenweg. They then followed Karo to his house using visual and beeper surveillance. At one point later that day, agents determined by using the beeper that the ether was still inside the house, but they later determined that it had been moved undetected to Horton’s house, where they located it using the beeper. Agent Rottinger could smell the ether from the public sidewalk near Horton’s residence. Two days later, agents discovered that the ether had once" } ]

[ { "docid": "17161889", "title": "", "text": "disclosed only pursuant to a warrant obtained by a showing of probable cause. Even assuming arguen-do that a cell phone is a tracking device under Section 3117, this argument is unavailing. First, Section 3117 provides that “[i]f a court is empowered to issue a warrant or other order for the installation of a mobile tracking device, such order may authorize the use of that device within the jurisdiction of the court, and outside that jurisdiction if the device is installed in that jurisdiction.” Accordingly, Section 3117 specifically “contemplates that a tracking device may be installed pursuant to an ‘order’ — that is, without a warrant and thus without a probable cause showing.” Further, Section 3117 speaks only to the “installation” of a tracking device. Here, the government does not seek to install any sort of tracking device, as cell phones provide location information on their own by transmitting signals to nearby antenna towers. Amicus next argues that permitting the disclosure of cell site information under the Pen Register Statute and the Stored Communications Act would violate the Fourth Amendment prohibition on unreasonable searches and seizures. It contends that granting this application would permit the government to track the location of the target cell phone — and its user — without a warrant and a showing of probable cause. This, it says, would run afoul of United States v. Karo, which held that the government may not install a tracking device without the knowledge of the person being tracked or a warrant if the device would disclose its location inside a person’s home and that information could not have been observed from public spaces. The government argues that there is no Fourth Amendment problem because cell phone users have no legitimate privacy interest in information they voluntarily turn over to third parties. It relies chiefly on Smith v. Maryland, in which the Supreme Court held that there is no legitimate privacy interest in telephone numbers dialed because telephone users voluntarily convey those numbers to the telephone company in order to place calls, thereby assuming the risk that the telephone company will" }, { "docid": "21665503", "title": "", "text": "constitutes a search.” Kyllo v. United States, 533 U.S. 27, 35, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (emphasis added) (citation omitted) (quoting Silverman v. United States, 365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)) (holding government use of thermal-imaging devices to monitor the heat being produced inside a home as part of a strategy to detect indoor marijuana growing was a search where the devices were unavailable to the general public, even though the devices were used only from outside the home without effecting a physical trespass); United States v. Karo, 468 U.S. 705, 708-09, 713-15, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (holding government monitoring of a tracking device placed in a shipment of chemicals taken home by a suspected drug dealer was a search where the agents tracked the device to locate the chemicals, on several occasions, within the defendant’s house and various other private residences; distinguishing Karo from Knotts on the sole basis that unlike in Knotts, in which “the record did not show that the beeper was monitored while the can containing it was inside the cabin,” the government in Karo had “surreptitiously employed] an electronic device to obtain information” about the interior of “a private residence, a location not open to visual surveillance,” in a way that was not feasible without the aid of the device) (emphasis added). Searches “inside a home without a warrant are presumptively unreasonable.” Karo, 468 U.S. at 715, 104 S.Ct. 3296; see also Silverman, 365 U.S. at 511, 81 S.Ct. 679 (holding that the right to privacy at home is “[a]t the very core” of what the Fourth Amendment seeks to protect). And the Fourth Amendment’s full complement of protections “also applies to hotel rooms.” United States v. Allen, 106 F.3d 695, 698 (6th Cir. 1997) (citing Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408,17 L.Ed.2d 374 (1966)). But using seven hours of GPS location data to determine an individual’s location (or a cell phone’s location), so long as the tracking does not reveal movements within the home (or hotel room), does not" }, { "docid": "19626125", "title": "", "text": "-tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor's offices, political headquarters, and other potentially revealing locales. See id., at ----, 134 S.Ct., at 2490 (noting that \"nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower\"); contrast Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion) (\"A car has little capacity for escaping public scrutiny.\"). Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user. Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. In the past, attempts to reconstruct a person's movements were limited by a dearth of records and the frailties of recollection. With access to CSLI, the Government can now travel back in time to retrace a person's whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years. Critically, because location information is continually logged for all of the 400 million devices in the United States-not just those belonging to persons who might happen to come under investigation-this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when. Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may-in the Government's view-call upon the results of that surveillance without regard to the constraints of the Fourth Amendment. Only the few without cell phones could escape this tireless and absolute surveillance. The Government and Justice KENNEDY contend, however, that the collection of CSLI should be permitted because the data is" }, { "docid": "10791340", "title": "", "text": "530 (1984), the Supreme Court further elaborated, in relevant part, that the installation of a beeper in a container with the consent of the original owner did not violate the Fourth Amendment when the container was later delivered to a buyer who had no knowledge of the presence of the beeper. Importantly, the Court in its analysis discounted the relevance of the physical trespass that occurred when the beeper was installed, indicating that “a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated.” Id. at 3302. Taken together, Knotts and Karo strongly suggested that the warrantless installation and monitoring of a tracking device to follow an individual in public spaces was permissible. Some appellate courts have taken this a step further, holding that Knotts and Karo actually authorized the warrantless use of GPS devices and therefore are themselves a basis for asserting the good-faith exception. See United States v. Aguiar, 737 F.3d 251, 261-62 (2d Cir.2013) (finding that police could reasonably have concluded, pre-Jones and based on Knotts and Karo, that a warrant was not needed to place a GPS device on a vehicle and that the good-faith exception to the warrant rule applied). We need not go that far here because at the time of the search the Sixth Circuit had already approved the police conduct. In United States v. Forest, 355 F.3d 942 (6th Cir.2004), police officers dialed a suspected drug trafficker’s phone, without allowing it to ring, and tracked him on public roads by identifying which cell phone towers were being “pinged.” This court upheld the practice, finding that the police did not conduct a search under the Fourth Amendment when they obtained the cell-site data and thereby identified the defendant’s location. Id. at 951-52. As this court explained, “[the defendant] had no legitimate expectation of privacy in the cell-site data because the DEA agents could have obtained the same information by following Garner’s car.” Id. at 951. Our decision in Forest was consistent with this court’s prior determination in United States v. Cassity, 720 F.2d 451, 455 (6th" }, { "docid": "21665504", "title": "", "text": "monitored while the can containing it was inside the cabin,” the government in Karo had “surreptitiously employed] an electronic device to obtain information” about the interior of “a private residence, a location not open to visual surveillance,” in a way that was not feasible without the aid of the device) (emphasis added). Searches “inside a home without a warrant are presumptively unreasonable.” Karo, 468 U.S. at 715, 104 S.Ct. 3296; see also Silverman, 365 U.S. at 511, 81 S.Ct. 679 (holding that the right to privacy at home is “[a]t the very core” of what the Fourth Amendment seeks to protect). And the Fourth Amendment’s full complement of protections “also applies to hotel rooms.” United States v. Allen, 106 F.3d 695, 698 (6th Cir. 1997) (citing Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408,17 L.Ed.2d 374 (1966)). But using seven hours of GPS location data to determine an individual’s location (or a cell phone’s location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveled—but the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking. And the tracking in Karo, while a search to the extent that the tracking device there was monitored within private residences, was not a search at other times, such as when the tracking device was monitored in one of the defendant’s vehicles “on its trip ... to the immediate vicinity of’ a private residence. 468 U.S. at 719, 104 S.Ct. 3296 (emphasis added). Therefore, the government did not conduct a search under the Fourth Amendment when it tracked the real-time GPS coordinates of Riley’s cell phone on the date of Riley’s" }, { "docid": "17161890", "title": "", "text": "violate the Fourth Amendment prohibition on unreasonable searches and seizures. It contends that granting this application would permit the government to track the location of the target cell phone — and its user — without a warrant and a showing of probable cause. This, it says, would run afoul of United States v. Karo, which held that the government may not install a tracking device without the knowledge of the person being tracked or a warrant if the device would disclose its location inside a person’s home and that information could not have been observed from public spaces. The government argues that there is no Fourth Amendment problem because cell phone users have no legitimate privacy interest in information they voluntarily turn over to third parties. It relies chiefly on Smith v. Maryland, in which the Supreme Court held that there is no legitimate privacy interest in telephone numbers dialed because telephone users voluntarily convey those numbers to the telephone company in order to place calls, thereby assuming the risk that the telephone company will pass that information on to law enforcement officials. The Court cannot resolve the Fourth Amendment question in the abstract. Although the government is correct that, under Smith, there is no legitimate expectation of privacy in the telephone numbers dialed from a particular telephone, it does not necessarily follow that a cell user abandons any legitimate expectation of privacy in his or her location by carrying a cell phone that signals its presence in the network to the service provider. Assuming arguendo that a cell phone user maintains at least some expectation of privacy in location, the government could violate Karo if it used cell site information to surveil a target in a private home that could not be observed from public spaces. At this point, however, the Court has no way of knowing if the government will use any cell site information it obtains in this manner. If it does, and information obtained leads to indictment, the issue can be litigated on a motion to suppress. C. Application Having concluded that it can order the" }, { "docid": "4865756", "title": "", "text": "ordinary course of business by the Defendants’ cellular provider, the Defendants have no legitimate expectation of privacy in those records, and therefore, no Fourth Amendment violation occurred. E. Electronic Surveillance, GPS Tracking, & Historical Cell-Site Data Although it need not be discussed at length, a separate line of Supreme Court cases also informs this Court’s decision. In United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), the Supreme Court held that “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” The Court concluded that the use of a beeper, to track an automobile on public roads did not constitute a search. The Court found that the use of a beeper merely enhanced law enforcement’s ability to track the suspect: “A police car following [the suspect] at a distance throughout his journey could have observed him.” Id. at 285, 103 S.Ct. 1081. The following year, in United States v. Karo, 468 U.S. 705, 708, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), the Court limited its holding in Knotts in concluding that the use of a beeper in a private residence, which was not open to visual surveillance, was a search that necessitated a warrant. Id. at 715, 104 S.Ct. 3296. Broadly speaking, these cases stand for the proposition that law enforcement conducts a Fourth Amendment “search” when it utilizes tracking technology that allows surveillance in locations that police could not monitor in the absence of that technology. See id. (“For purposes of the [Fourth] Amendment, the result is [an unconstitutional search] where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observations from outside the curtilage of the house.”). Here, the historical cell site location records at issue identify only the closest cellular tower to the Defendants’ phones, and not the precise location of the Defendants themselves. The Defendants have not argued that the historical cell site records revealed their movements in protected areas such as their homes. Indeed, even" }, { "docid": "10524115", "title": "", "text": "did not implicate Fourth Amendment concerns, because the defendants had no reasonable expectation of privacy while in plain view on public thoroughfares. Id. at 282-84, 103 S.Ct. 1081. In United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), by contrast, the Court held that the use of a tracking device to determine the specific location of the tracked material within a private residence was a Fourth Amendment search because that fact “could not have been visually verified.” Id. at 715, 104 S.Ct. 3296. Because cell-site data is typically not precise enough to identify the particular building from which a suspect placed a phone call, several courts, relying on the Knotts/Karo distinction, have found that such information does not constitute a Fourth Amendment search. See, e.g., In re Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304, 312-13 (3d Cir.2010); Suarez-Blanca, 2008 WL 4200156, at *9-11; Kaplan Opinion, 460 F.Supp.2d at 462 (noting that if such information could track an individual into a private home then it might raise Fourth Amendment concerns). Among the courts that have come to the opposite conclusion that the use of cell-site data obtained without a warrant based on probable cause constitutes a Fourth Amendment search, many have relied on the D.C. Circuit’s opinion in Maynard. There, this Circuit applied the “mosaic theory,” under which law enforcement activities which, standing alone, do not violate the Fourth Amendment, may nevertheless do so when viewed in the aggregate. Id. at 562-64. Thus, even though the government could have physically followed Jones’s car in public spaces without violating the Fourth Amendment, the government’s use of a GPS tracking device to record his movements over a month-long period violated his reasonable expectation of privacy in the totality of his movements. Id. at 563. This approach also appears to enjoy support among the concurring justices in Jones. For instance, Justice Alito — in a concurrence joined by Justices Ginsburg, Breyer, and Kagan — noted that although “relatively short-term monitoring" }, { "docid": "4865757", "title": "", "text": "3296, 82 L.Ed.2d 530 (1984), the Court limited its holding in Knotts in concluding that the use of a beeper in a private residence, which was not open to visual surveillance, was a search that necessitated a warrant. Id. at 715, 104 S.Ct. 3296. Broadly speaking, these cases stand for the proposition that law enforcement conducts a Fourth Amendment “search” when it utilizes tracking technology that allows surveillance in locations that police could not monitor in the absence of that technology. See id. (“For purposes of the [Fourth] Amendment, the result is [an unconstitutional search] where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observations from outside the curtilage of the house.”). Here, the historical cell site location records at issue identify only the closest cellular tower to the Defendants’ phones, and not the precise location of the Defendants themselves. The Defendants have not argued that the historical cell site records revealed their movements in protected areas such as their homes. Indeed, even with an ever-denser cellular tower grid, such precision is impossible. Moreover, even if cell site records could definitively indicate that an individual is in his home, that information only reveals that a person made or received a phone call while at home — in other words, non-incriminatory information that is clearly obtainable via the constitutional pen register at issue in Smith v. Maryland. In this regard, the Defendants again fall back on the “cumulative” nature of the cell site records at issue in this case. However, as previously discussed, in this Court’s judgment the Fourth Amendment does not contemplate constitutional police action that becomes illegal when aggregated. Accordingly, this Court concludes that the government’s acquisition of historical cell site location records did not infringe the Defendants’ Fourth Amendment rights. F. Emerging Technology & the Fourth Amendment The Supreme Court has cautioned that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” City of Ontario, California v. Quon, — U.S. -," }, { "docid": "21665505", "title": "", "text": "cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveled—but the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking. And the tracking in Karo, while a search to the extent that the tracking device there was monitored within private residences, was not a search at other times, such as when the tracking device was monitored in one of the defendant’s vehicles “on its trip ... to the immediate vicinity of’ a private residence. 468 U.S. at 719, 104 S.Ct. 3296 (emphasis added). Therefore, the government did not conduct a search under the Fourth Amendment when it tracked the real-time GPS coordinates of Riley’s cell phone on the date of Riley’s arrest. Skinner upheld tracking that spanned three days; here, approximately seven hours elapsed between the first ping and the time of Riley’s arrest. That Riley was arrested in a motel is of no moment, for the government learned no more about Riley’s whereabouts from tracking his cell-phone GPS data than what Riley exposed to public view by traveling to the motel lobby “along public thoroughfares,” Skinner, 690 F.3d at 774—even if Riley meant to keep his location a secret, one cannot expect privacy in one’s public movements. And had Riley truly wished to avoid detection, he could have chosen not to carry a cell phone at all, or to turn it off. The district court thus correctly denied Riley’s motion to suppress. AFFIRMED. . Cell-phone location tracking refers to all methods of tracking a cell phone, including gathering cell-site location information (commonly referred to as CSL or CSLI) and tracking satellite-based Global Positioning System (GPS) data. CSL data are generated when a cell phone connects with a cell tower in order to make or receive" }, { "docid": "20585428", "title": "", "text": "of U.S. for an Order Authorizing the Release of Historical Cell-Site Info. (In re Application (E.D.N.Y.)), 809 F.Supp.2d 113, 120 (E.D.N.Y.2011) (“reasonable expectation of privacy in long-term cell-site-location records”). Even the Supreme Court, in Riley, specifically cited “[historic location information” as among the heightened privacy concerns presented in government inspection of cell phones, as such information details the user’s “specific movements down to the minute, not only around town but also within a particular building.” 134 S.Ct. at 2490. Taken together, Karo, Kyllo, and the views expressed in Riley and the Jones concurrences support our conclusion that the government invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual over an extended period of time. Cell phone tracking through inspection of CSLI is one such technology. It is possible that the CSLI for a particular cell phone is not very revealing at all because, for instance, the phone has been turned off or it has made few or no connections to the cellular network. But the government cannot know in advance of obtaining this information how revealing it will be or whether it will detail the cell phone user’s movements in private spaces. See Earls, 70 A.3d at 642. We hold, therefore, that the government engages in a Fourth Amendment search when it seeks to examine historical CSLI pertaining to an extended time period like 14 or 221 days. 3. The district court concluded that this case is distinguishable from Karo and Maynard/Jones because the type of locational surveillance at issue in those cases permits real-time tracking with greater precision and continuity than the examination of historical CSLI. See Graham, 846 F.Supp.2d at 391-92, 404. The use of GPS technology challenged in Maynard/Jones permitted law enforcement to track the suspect’s vehicle continuously at every moment “ ’24 hours a day for 28 days[,]’ ” id. at 392 (quoting Maynard, 615 F.3d at 558), while, here, the CSLI records only disclose a finite number of location data points for certain points in time. This distinction is constitutionally insignificant. The" }, { "docid": "14100191", "title": "", "text": "at 27-28. . Ex. 5, at 44-45. . Id. at 40. . Id. . Id. at 44. . Ex. 4, at 28. . Id. at 28-29. . Id. at 29. . Id. . Ex. 4, at 19. . Exhibit 5, at 48 (citing J.D. Power’s 2009 Wireless Call Quality Performance Study— Volume 1). . Pew Research Center Study, Ex. 13. . Ex. 6. . Id. . Nielsen Wire (Sept. 22, 2008), Ex. 14. . Ex. 13, at 3, 23. . Ex. 14. . Ex. 13, at 23. .The Government has offered a one page document described as a \"redacted sample of historical cell site information,” produced by T-Mobile in response to an unspecified order issued October 6, 2010 and including some calls from September 2010. Ex. 17 (H-10998M, Dkt 4-1). The document has 50 location points, but does not indicate what day(s) the calls were made, or whether this represents all cell site data produced in response to the order. Nor is there any indication of the size of the listed cell sectors, or the locational precision of the data. .A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver. United States v. Knotts, 460 U.S. 276, 277, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). The current generation of tracking device beepers are monitored by radio signals transmitted via the very same cell towers used to carry wireless phone signals. See In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F.Supp.2d 747, 754 (S.D.Tex.2005) (“Given this convergence in technology, the distinction between cell site data and information gathered by a tracking device has practically vanished.’’). . Findings of Fact 14, 42. . This is one of the factors which distinguishes cell site data from the phone numbers dialed in Smith v. Maryland, which were held unprotected by the Fourth Amendment. Unlike a wireline phone in a fixed location such as a residence, a cell phone accompanies its user throughout the day, revealing when the user leaves the house and when he returns." }, { "docid": "19626115", "title": "", "text": "that the Government-absent a warrant-could not capitalize on such new sense-enhancing technology to explore what was happening within the home. Ibid. Likewise in Riley, the Court recognized the \"immense storage capacity\" of modern cell phones in holding that police officers must generally obtain a warrant before searching the contents of a phone. 573 U.S., at ----, 134 S.Ct., at 2489. We explained that while the general rule allowing warrantless searches incident to arrest \"strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to\" the vast store of sensitive information on a cell phone. Id., at ----, 134 S.Ct., at 2484. B The case before us involves the Government's acquisition of wireless carrier cell-site records revealing the location of Carpenter's cell phone whenever it made or received calls. This sort of digital data-personal location information maintained by a third party-does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake. The first set of cases addresses a person's expectation of privacy in his physical location and movements. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), we considered the Government's use of a \"beeper\" to aid in tracking a vehicle through traffic. Police officers in that case planted a beeper in a container of chloroform before it was purchased by one of Knotts's co-conspirators. The officers (with intermittent aerial assistance) then followed the automobile carrying the container from Minneapolis to Knotts's cabin in Wisconsin, relying on the beeper's signal to help keep the vehicle in view. The Court concluded that the \"augment[ed]\" visual surveillance did not constitute a search because \"[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.\" Id., at 281, 282, 103 S.Ct. 1081. Since the movements of the vehicle and its final destination had been \"voluntarily conveyed to anyone who wanted to look,\" Knotts could not" }, { "docid": "4027565", "title": "", "text": "to 10 or more miles apart in rural areas and may be up to a half-mile or more apart even in urban areas. Moreover, the data is provided only in the event the user happens to make or receive a telephone call. Thus, amicus’s reference to tracking devices and the cases considering this technology is not on point. In any event, the case most strongly relied on by amicus, United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), held only that the installation of a true tracking device without the knowledge of the person it was tracking must be the subject of a warrant if the device discloses its location inside someone’s home and that information could not have been obtained by observation. 468 U.S. at 714, 104 S.Ct. 3296; cf. United States v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (no warrant required' where the installed tracking device reveals information observable from a public highway). Here, however,' the Government does not seek to install the “tracking device”: the individual has chosen to carry a device and to permit transmission of its information to a third party, the carrier. As the Supreme Court has held in the context of telephone numbers captured by a pen register, the provision of information to a third party does not implicate the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); see also United States Telecom. Ass’n v. FCC, 227 F.3d at 459 (“Smith’s reason for finding no legitimate expectation of privacy in dialed telephone numbers — that callers voluntarily convey this information to the phone company in order to complete calls — -applies as well to much of the information provided by the challenged capabilities.”) (referring to information that included “antenna tower location”). Amicus argues that the information is not voluntarily conveyed because, unlike telephone numbers, location information is being transmitted even in the absence of a telephone call. Amicus Letter at 23 (citing Texas Decision, 396 F.Supp.2d at 756-57). The Court need not reach" }, { "docid": "14100192", "title": "", "text": "locational precision of the data. .A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver. United States v. Knotts, 460 U.S. 276, 277, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). The current generation of tracking device beepers are monitored by radio signals transmitted via the very same cell towers used to carry wireless phone signals. See In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F.Supp.2d 747, 754 (S.D.Tex.2005) (“Given this convergence in technology, the distinction between cell site data and information gathered by a tracking device has practically vanished.’’). . Findings of Fact 14, 42. . This is one of the factors which distinguishes cell site data from the phone numbers dialed in Smith v. Maryland, which were held unprotected by the Fourth Amendment. Unlike a wireline phone in a fixed location such as a residence, a cell phone accompanies its user throughout the day, revealing when the user leaves the house and when he returns. Also, because each member of a household is likely to have her own phone, cell site data is more likely to reveal which household member made a particular call from the residence. . Of course, the records sought here were not the product of law enforcement surveillance, but were gathered and maintained by the providers in the course of their business. Based on this distinction, the Government argues that the third party doctrine of U.S. v. Miller applies, and therefore its request is not a \"search” for purposes of the Fourth Amendment. This contention is considered (and rejected) in Part C below. . Brief for the United States at 34-35, 2009 WL 3866618 (Feb. 13, 2009). This proposition is questionable in itself. Even in areas where houses and cell towers are few and far between, law enforcement may reliably pinpoint a target's exact location with little more than a known address or direct observation. See, e.g., the unfortunate case of Mr. Nesbitt of Harlow New Town, depicted at www. youtube.com/watch?v=ltmMJntSfQI (last visited Oct. 29, 2010)." }, { "docid": "10791341", "title": "", "text": "Knotts and Karo, that a warrant was not needed to place a GPS device on a vehicle and that the good-faith exception to the warrant rule applied). We need not go that far here because at the time of the search the Sixth Circuit had already approved the police conduct. In United States v. Forest, 355 F.3d 942 (6th Cir.2004), police officers dialed a suspected drug trafficker’s phone, without allowing it to ring, and tracked him on public roads by identifying which cell phone towers were being “pinged.” This court upheld the practice, finding that the police did not conduct a search under the Fourth Amendment when they obtained the cell-site data and thereby identified the defendant’s location. Id. at 951-52. As this court explained, “[the defendant] had no legitimate expectation of privacy in the cell-site data because the DEA agents could have obtained the same information by following Garner’s car.” Id. at 951. Our decision in Forest was consistent with this court’s prior determination in United States v. Cassity, 720 F.2d 451, 455 (6th Cir.1983) (indicating that beepers may be used to track individuals in public places but not in private areas like homes), vacated, 468 U.S. 1212, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984). While Forest and Cassity dealt with cell phones and beepers, not GPS, the cases clearly indicated that the warrantless use of electronic tracking devices was permissible. Put differently, our precedent on the constitutionality of warrantless track ing was unequivocal. See Buford, 632 F.3d at 276 n. 9. Obviously, the technological device in the present case is not exactly the same as that used in Forest, but the effect it has is nearly identical: police used the defendant’s cell phone in Forest like a GPS tracker to identify the defendant’s location. See Forest, 355 F.3d at 948 (“[Defendant] contends that the DEA’s use of cell-site data effectively turned his cellular phone into a tracking device, violating his rights under ... the Fourth Amendment.”). This is again precisely what the police did here. Officers heavily relied on physical surveillance to follow Fisher and used the GPS" }, { "docid": "4027564", "title": "", "text": "Statute’s procedural provisions that are tied to such a device are appropriately combined with an application under section 2703 to obtain such information. D. Effect of the Fourth Amendment The only remaining question is whether the issuance of a court order for cell site information under section 2703 and the Pen Register Statute is unconstitutional because it violates the Fourth Amendment’s prohibition against unreasonable searches and seizures. Amicus (and some of the cell site cases) discusses the issue in terms of whether the cell phone is a “tracking device” and whether a warrant grounded in probable cause is necessary for the installation of such a device. But the data being sought by the Government in this District is not what amicus believes it to be. The information does not provide a “virtual map” of the user’s location. Amicus Letter at 24. The Information does not pinpoint a user’s location within a building. Instead, it only identifies a nearby cell tower and, for some carriers, a 120-degree face of that tower. These towers can be up to 10 or more miles apart in rural areas and may be up to a half-mile or more apart even in urban areas. Moreover, the data is provided only in the event the user happens to make or receive a telephone call. Thus, amicus’s reference to tracking devices and the cases considering this technology is not on point. In any event, the case most strongly relied on by amicus, United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), held only that the installation of a true tracking device without the knowledge of the person it was tracking must be the subject of a warrant if the device discloses its location inside someone’s home and that information could not have been obtained by observation. 468 U.S. at 714, 104 S.Ct. 3296; cf. United States v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (no warrant required' where the installed tracking device reveals information observable from a public highway). Here, however,' the Government does not seek to install" }, { "docid": "15044158", "title": "", "text": "held that where a beeper placed inside a chemical drum was then used to ascertain the drum’s presence within a residence, the search was unreasonable absent a warrant supported by probable cause. More specifically, the Court stated that the “case ... presented] the question whether the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence.” Id. at 714, 104 S.Ct. 3296. The Karo Court distinguished Knotts: [Mjonitoring of an electronic device such as a beeper is, of course, less intrusive than a full-scale search, but it does reveal a critical fact about the interior of the premises that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant. The case is thus not like Knotts, for there the beeper told the authorities nothing about the interior of Knotts’ cabin .... here, as we have said, the monitoring indicated that the beeper was inside the house, a fact that could not have been visually verified. Id. at 715,104 S.Ct. 3296. We cannot reject the hypothesis that CSLI may, under certain circumstances, be used to approximate the past location of a person. If it can be used to allow the inference of present, or even future, location, in this respect CSLI may resemble a tracking device which provides information as to the actual whereabouts of the subject. The Knotts/Karo opinions make clear that the privacy interests at issue are confined to the interior of the home. There is no evidence in this record that historical CSLI, even when focused on cell phones that are equipped with GPS, extends to that realm. We therefore cannot accept the MJ’s conclusion that CSLI by definition should be considered information from a tracking device that, for that reason, requires probable cause for its production. In sum, we hold that CSLI from cell phone calls is obtainable under a § 2703(d) order and that such an order does not require the traditional probable cause determination." }, { "docid": "15044156", "title": "", "text": "other words, the Government has asserted in other cases that a jury should rely on the accuracy of the cell tower records to infer that an individual, or at least her cell phone, was at home. The Government counters that Agent Shute acknowledged that historical cell site information provides only a rough indication of a user’s location at the time a call was made or received. The Government correctly notes that Agent Shute did not state that the cell-site information “is reliable evidence” that the suspect was at home, as EFF asserts. EFF Br. at 15. Agent Shute only stated that it is “highly possible” that the user was at home or in the vicinity. This dispute may seem to be a digression, but it is not irrelevant. The MJ proceeded from the premise that CSLI can track a cell phone user to his or her location, leading the MJ to conclude that CSLI could encroach upon what the MJ believed were citizens’ reasonable expectations of privacy regarding their physical movements and locations. The MJ regarded location information as “extraordinarily personal and potentially sensitive.” MJOp., 534 F.Supp.2d at 586. We see no need to decide that issue in this case without a factual record on which to ground the analysis. Instead, we merely consider whether there was any basis for the MJ’s underlying premises. For that purpose, we refer to two opinions of the Supreme Court, both involving criminal cases not directly applicable here, but which shed some light on the parameters of privacy expectations. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), the Supreme Court held that the warrantless installation of an electronic tracking beeper/radio transmitter inside a drum of chemicals sold to illegal drug manufacturers, and used to follow their movements on public highways, implicated no Fourth Amendment concerns, as the drug manufacturers had no reasonable expectation of privacy while they and their vehicles were in plain view on public highways. The following year, in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), the Court" }, { "docid": "10524114", "title": "", "text": "data because (a) they voluntarily conveyed their location information to the cell phone company when they initiated a call and transmitted their signal to a nearby cell tower, and (b) the companies maintained that information in the ordinary course of business. See, e.g., Graham, 846 F.Supp.2d at 397-401; Madi son, 2012 WL 3095357, at *7-9; Urbina Opinion, No. 09-153-02, at 2-3; Lamberth Opinion, No. 11-449, at 9-11; Benford, 2010 WL 1266507, at *2-3; Suarez-Blanca, 2008 WL 4200156, at *8-9; but see, e.g., Smith II Opinion, 747 F.Supp.2d at 843-45 (rejecting third-party doctrine because most individuals do not know that use of their cell phone creates a record of their location and therefore do not “voluntarily” convey that information to the third-party cell phone company). Other courts, at least prior to Jones, have analyzed cell-site location information under the Supreme Court’s “tracking devices” eases. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), the Supreme Court held that the use of a tracking device to follow movements on public highways did not implicate Fourth Amendment concerns, because the defendants had no reasonable expectation of privacy while in plain view on public thoroughfares. Id. at 282-84, 103 S.Ct. 1081. In United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), by contrast, the Court held that the use of a tracking device to determine the specific location of the tracked material within a private residence was a Fourth Amendment search because that fact “could not have been visually verified.” Id. at 715, 104 S.Ct. 3296. Because cell-site data is typically not precise enough to identify the particular building from which a suspect placed a phone call, several courts, relying on the Knotts/Karo distinction, have found that such information does not constitute a Fourth Amendment search. See, e.g., In re Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304, 312-13 (3d Cir.2010); Suarez-Blanca, 2008 WL 4200156, at *9-11; Kaplan Opinion, 460 F.Supp.2d at 462 (noting that" } ]

[ { "docid": "22545844", "title": "", "text": "Mr. Justice Clark delivered the opinion of the Court. The question here is whether mandamus is an appropriate remedy to vacate a severance and transfer order entered by a district judge on the ground of improper venue, under 28 U. S. C. § 1406 (a). This case arises out of a treble damage action brought by petitioner, an Illinois insurance corporation, in the United States District Court for the Southern District of Florida, alleging a conspiracy to injure petitioner’s business, in violation of the Sherman and Clayton Acts. The complaint named as defendants the insurance commissioners of Georgia and Florida, one other individual, and four insurance companies residing and transacting business in the Southern District of Florida. The Georgia insurance commissioner, Cravey, was personally served in the Northern District of Florida and, without entering his appearance or waiving venue, moved to quash the summons and return of service and dismiss him from the action for improper venue. The applicable venue statute for private treble damage actions brought under the antitrust laws, 15 U. S. C. § 15, allows suit “in any district court of the United States in the district in which the defendant resides or is found or has an agent . . . .” It is admitted that Commissioner Cravey was not a resident of the Southern District of Florida, but petitioner contends that the Commissioner “was a member of a conspiracy whose other members were residing and carrying on the illegal business of the conspiracy in the Southern District of Florida, . . . that a conspiracy is a partnership and that co-conspirators are each other’s agents ...” and that the Commissioner therefore was “found” and had “agents” in the district, within the meaning of the statute. In furtherance of its theory that the Commissioner was “found” in the district, petitioner alleged overt acts committed by the Commissioner, as well as his codefendants, in the district where the suit was filed. The respondent judge held that the court had jurisdiction of the action and of the Commissioner, under Rule 4 (f) of the Rules of Civil Procedure," } ]

[ { "docid": "11204951", "title": "", "text": "situation lends itself more readily to a holding that the local conspirators were Triumph’s agents than a case where there are separate entity conspirators. Despite the above mentioned factors, some district court decisions in the Ninth Circuit have embraced the cocon-spirator theory in reliance on Giusti. See Steiner v. Twentieth Century-Fox Film Corp., 140 F.Supp. 906 (S.D.Cal. 1953). In three other cases the courts declined to rule upon defense motions challenging venue and service until after further evidence was adduced bearing upon the foreign corporation’s participation in the alleged conspiracy. See Ziegler Chemical & Mineral Corp. v. Standard Oil Co., 39 F.R.D. 241 (N.D.Cal. 1962); State of California v. Brunswick Co., 32 F.R.D. 36 (N.D.Cal. 1961); De Golia v. Twentieth Century-Fox Film Corp., 140 F.Supp. 316 (N.D.Cal.1953). In Haleiwa Theatre Co., Ltd. v. Forman, 37 F.R.D. 62 (D.Hawaii 1965), the district court indicated that if it were to consider the matter on a clean slate it would consider the Giusti coconspirator theory simply dicta. The Court, however, felt obliged to follow the other Ninth Circuit district court decisions following the theory. A few district court cases outside the Ninth Circuit have expressed a favorable view of the coeonspirator theory. Riss & Co. v. Association of Western Railways, 159 F. Supp. 288 (D.D.C.1958); Ross-Bart Port Theatre v. Eagle Lion Films, 140 F.Supp. 401 (D.Va.1954); Don-George, Inc. v. Paramount Pictures, 111 F.Supp. 458 (W.D.La.1951). Recently the Ninth Circuit had occasion to reconsider the Giusti case, but declined to do so because the issue was not ripe for review. American Concrete Agricultural Pipe Ass’n v. No-Joint Concrete Pipe Co., 331 F.2d 706 (9th Cir. 1964), was an antitrust suit against defendant Pipe Association, a non-profit membership corporation whose principal place of business was in Chicago. The action was brought in California, but the Association moved to dismiss for lack of venue. The motion was denied on two grounds. First, the district court accepted the view that Giusti established that participation as a coconspirator was sufficient transaction of business to warrant venue in the district. Secondly, the Court took the position that after the" }, { "docid": "1236208", "title": "", "text": "Giusti in the antitrust context intimates that this is, at best, an open question. The court of appeals stated in Hayashi v. Red Wing Peat Corp., 396 F.2d 13, 15 (9th Cir. 1968): Since appellants disavowed reliance upon acts of alleged co-conspirators within the district as affording a basis for venue, we need not consider whether Giusti v. Pyrotechnic Productions [sic], Inc., 156 F.2d 351, 354 (9th Cir. 1946) holds that venue may be established on this basis, and, if it does, whether, as appellee argues, such a holding is inconsistent with Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953). See Bertha Bldg. Corp. v. National Theatres Corp., 248 F.2d 833 (2d Cir. 1957); H. L. Moore Drug Exchange, Inc., supra. Whatever the authority of Giusti in the antitrust realm, careful examination of the case and of subsequent decisions explicating it discloses that its delineation of what may be deemed “transacting business” in a district by foreign co-conspirators is not as sweeping as plaintiffs assert. Plaintiffs’ contention that any transacting of business in the district by a defendant may be imputed to co-conspirators — whether or not connected with the conspiracy — carries the co-conspirator rationale beyond its own logic, because one co-conspirator is deemed the agent of the others only with respect to activities in furtherance of the conspiracy. This limitation is implicit in those cases that have viewed Giusti as allowing venue for absent co-conspirators only when conspiratorial agreement or overt acts are alleged to have occurred within the district. E. g., Ziegler Chemical & Mineral Corp. v. Standard Oil of California, 32 F.R.D. 241, 243 (N.D.Cal.1962). But Giusti itself is even more limited: in order to hold that the absent co-conspirator had transacted business within California, the court in Giusti not only relied upon acts of conspiracy in the state but was at pains to establish that these acts themselves constituted the transaction of business. 156 F.2d at 353-354. Thus, to come within Giusti the complaint must allege conspiratorial agreement or overt acts within the district that" }, { "docid": "4898331", "title": "", "text": "it within the meaning of Section 12 of the Clayton Act. In support of this contention, plaintiff relies on the case of Giusti v. Pyrotechnic Industries, 9 Cir., 156 F.2d 351 (1946), in which the Court of Appeals for this circuit held that acts done within this state in furtherance of a conspiracy in restraint of trade by the California members of the conspiracy constituted business transacted within the state by an out-of-state conspirator who did not otherwise do business here. The Giusti decision was made in reference to a California statute providing for substitute service of process upon foreign corporations in actions arising out of business transacted in California. However, it has been held by this Court to be controlling in determining whether a corporation has transacted business in this District within the meaning of Section 12 of the Clayton Act. E. B. De Golia v. Twentieth Century Fox Film Corp., D.C., 140 F.Supp. 316 (1953); The State of California v. Brunswick Company, D.C., 32 F.R.D. 36 (decision dated July 11, 1961, denying motion to quash service of process). Defendant Barber urges that the application of the Giusti doctrine in determining whether venue has been properly laid in an anti-trust action has been disapproved by the United States Supreme Court in strong dicta in Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953). However, it is unnecessary to determine at this stage of the present proceeding the extent to which Giusti may properly be applied in determining whether Barber has transacted business in California within the meaning of Section 12 of the Clayton Act, for the allegations of the complaint are in themselves wholly inadequate for application of the Giusti doctrine. The Giusti decision was made upon the basis of a complaint which alleged continued acts by some of the conspirators in California over a period of six months. The present complaint is devoid of any allegations regarding acts done within this District in furtherance of the conspiracy by any of the conspirators. Plaintiff has also sought to establish by affidavits" }, { "docid": "20195932", "title": "", "text": "in 1935. The action in the Eastern District of New York was not commenced until 1951. This was prior to the effective date of the present four-year statute of limitations prescribed in Sec. 4B of the Clayton Act. National, relying on California’s three-year statute of limitations, moved for judgment on the pleadings dismissing the complaint. The plaintiff contended the statute had been tolled because National was “out of the state when the cause of action accrue[d]” and had not returned. The Court, after considering the four District Court decisions, which it said “reaffirmed” and were in accord with “the principle enunciated in the Giusti case,” concluded that “on the basis of the allegation of the complaint, under Section 12 of the Clayton Act * * * the court sitting in California could have had jurisdiction over the defendant,” and granted National’s motion for judgment dismissing the complaint. The Court, however, did not let the matter rest there. It went further and found that National was both “parent and grandparent” of numerous subsidiaries in a “multi-corporate structure” whose managers actually “were present in California transacting business of the corporate structure and of direct interest to National.” Accordingly, “as alternative grounds for dismissing the complaint as barred by the California statute of limitations,” the Court found “as a matter of fact that within the interpretation given Section. 12 of the Clayton Act * * * in United States v. Scophony Corp., 1947, 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091 * * * and Eastman Kodak Co. v. Southern Photo Materials Company, 1927, 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 * * * National Theatres was transacting business in California.” ‘The Scophony decision certainly does not accord with the so-called Giusti “principle.” In that action, brought in this district, the Government sued Scophony, a British corporation, together with several American corporations and others, to restrain an alleged conspiracy in violation of the Anti-trust laws. Scophony, whose principal office was in London, challenged venue on the ground that it did not “transact business” and was not “found” in the Southern" }, { "docid": "11204950", "title": "", "text": "the Court thus ruled that any liability which Triumph incurred to plaintiff through its conspirator-agents was a liability incurred through the transaction of business within the State. Triumph also raised venue objections but the Court did not consider § 22 of the Clayton Act. Rather, it took the view that by filing the certificate of withdrawal and designating an agent for service of process Triumph waived all objections to venue. From this background, several factors emerge which suggest that Giusti does not directly support the unqualified proposition that transaction of business by one coconspirator subjects all participants to venue in the district where one coconspirator transacts business. Of prime significance is the fact that the Court was interpreting a California statute which related to jurisdiction and not to venue. Section 22 of the Clayton Act was not involved in the decision. Moreover, Triumph itself had actually transacted business in California. In addition, there is the fact that Triumph was a corporate association composed of the other defendants in the case, including California corporations. Such a situation lends itself more readily to a holding that the local conspirators were Triumph’s agents than a case where there are separate entity conspirators. Despite the above mentioned factors, some district court decisions in the Ninth Circuit have embraced the cocon-spirator theory in reliance on Giusti. See Steiner v. Twentieth Century-Fox Film Corp., 140 F.Supp. 906 (S.D.Cal. 1953). In three other cases the courts declined to rule upon defense motions challenging venue and service until after further evidence was adduced bearing upon the foreign corporation’s participation in the alleged conspiracy. See Ziegler Chemical & Mineral Corp. v. Standard Oil Co., 39 F.R.D. 241 (N.D.Cal. 1962); State of California v. Brunswick Co., 32 F.R.D. 36 (N.D.Cal. 1961); De Golia v. Twentieth Century-Fox Film Corp., 140 F.Supp. 316 (N.D.Cal.1953). In Haleiwa Theatre Co., Ltd. v. Forman, 37 F.R.D. 62 (D.Hawaii 1965), the district court indicated that if it were to consider the matter on a clean slate it would consider the Giusti coconspirator theory simply dicta. The Court, however, felt obliged to follow the other Ninth Circuit" }, { "docid": "1236206", "title": "", "text": "the out-of-state defendant had “transacted business” in California within the meaning of then section 406a of the California Civil Code, the court decided first that the acts of the defendant’s co-conspirators alleged in the complaint constituted “transacting business” in California, and then applied an agency principle to impute this “transacting” to the foreign defendant. 156 F.2d at 353-354. The co-conspirator theory of “transacting business” within the meaning of Section 12 of the Clayton Act — to which Giusti has been said to have given “illegitimate birth” — has been rejected by the only court of appeals squarely confronted with it, and has (in dictum) been termed “frivolous” by the Supreme Court. While it has been observed, as plaintiffs herein stress, that the venue provisions for private antitrust actions are intended to give injured plaintiffs a broad choice of forum, the co-conspirator approach, allowing venue ás to defendants with no direct contacts with the forum district, has frequently been rejected as an unwarranted extension, beyond the legislative purpose. E. g., Bankers Life & Casualty Co. v. Holland, supra; Independent Productions Corp. v. Loew’s, Inc., 148 F.Supp. 460, 463 (S.D.N.Y.1957); West Virginia v. Morton International, Inc., 264 F.Supp. 689, 695 (D.Minn.1967); Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 291 F.Supp. 252, 262 (E.D.Pa.1968); Byrnes, supra, 11 Antitrust Bull, at 895-896. One major vice of the theory, it has been noted, is that under it a defendant could establish the claim of improper venue only after submitting to a trial on the merits. See West Virginia v. Morton International, supra, 264 F.Supp. at 695; Byrnes, supra, 11 Antitrust Bull, at 896. Several of the district courts in the Ninth Circuit that have admitted co-conspirator venue under 15 U.S.C. § 22 have done so out of a belief that the result was compelled in the circuit by Giusti itself. See De Golia v. Twentieth Century-Fox Film Corp., 140 F.Supp. 316, 317 (N.D.Cal.1954); California v. Brunswick Co., 32 F.R.D. 36, 38 (N.D. Cal.1961); cf. Haleiwa Theatre Co. v. Forman, 37 F.R.D. 62, 65 (D.Haw.1965). But the most recent Ninth Circuit decision discussing" }, { "docid": "4898332", "title": "", "text": "to quash service of process). Defendant Barber urges that the application of the Giusti doctrine in determining whether venue has been properly laid in an anti-trust action has been disapproved by the United States Supreme Court in strong dicta in Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953). However, it is unnecessary to determine at this stage of the present proceeding the extent to which Giusti may properly be applied in determining whether Barber has transacted business in California within the meaning of Section 12 of the Clayton Act, for the allegations of the complaint are in themselves wholly inadequate for application of the Giusti doctrine. The Giusti decision was made upon the basis of a complaint which alleged continued acts by some of the conspirators in California over a period of six months. The present complaint is devoid of any allegations regarding acts done within this District in furtherance of the conspiracy by any of the conspirators. Plaintiff has also sought to establish by affidavits that Barber is transacting business in California through the agency of defendant American Gilsonite Company in which Barber holds a fifty per cent stock ownership. Plaintiff asserts that the facts alleged in affidavits filed by it in opposition to Barber’s motion to dismiss show that Barber exercises sufficiently close domination and control over American Gilsonite’s California business to constitute it Barber’s agent here. However, the facts alleged in the affidavits are insufficient to warrant a finding of such domination and control as would create an agency relationship. Moreover, these factual allegations have in substantial part been controverted by affidavits filed by Barber. The net result is that at this stage of the proceeding jurisdiction and venue under the anti-trust statutes have not been established in respect to defendant Barber. But, it does not follow that the Court should act upon Barber’s motion to dismiss at this time. The issues of jurisdiction and venue may properly be determined upon affidavits. Williams et al. v. Minnesota Mining & Manufacturing Co., 14 F.R.D. 1 (S.D.Cal.1953). Or, the Court" }, { "docid": "1236207", "title": "", "text": "Holland, supra; Independent Productions Corp. v. Loew’s, Inc., 148 F.Supp. 460, 463 (S.D.N.Y.1957); West Virginia v. Morton International, Inc., 264 F.Supp. 689, 695 (D.Minn.1967); Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 291 F.Supp. 252, 262 (E.D.Pa.1968); Byrnes, supra, 11 Antitrust Bull, at 895-896. One major vice of the theory, it has been noted, is that under it a defendant could establish the claim of improper venue only after submitting to a trial on the merits. See West Virginia v. Morton International, supra, 264 F.Supp. at 695; Byrnes, supra, 11 Antitrust Bull, at 896. Several of the district courts in the Ninth Circuit that have admitted co-conspirator venue under 15 U.S.C. § 22 have done so out of a belief that the result was compelled in the circuit by Giusti itself. See De Golia v. Twentieth Century-Fox Film Corp., 140 F.Supp. 316, 317 (N.D.Cal.1954); California v. Brunswick Co., 32 F.R.D. 36, 38 (N.D. Cal.1961); cf. Haleiwa Theatre Co. v. Forman, 37 F.R.D. 62, 65 (D.Haw.1965). But the most recent Ninth Circuit decision discussing Giusti in the antitrust context intimates that this is, at best, an open question. The court of appeals stated in Hayashi v. Red Wing Peat Corp., 396 F.2d 13, 15 (9th Cir. 1968): Since appellants disavowed reliance upon acts of alleged co-conspirators within the district as affording a basis for venue, we need not consider whether Giusti v. Pyrotechnic Productions [sic], Inc., 156 F.2d 351, 354 (9th Cir. 1946) holds that venue may be established on this basis, and, if it does, whether, as appellee argues, such a holding is inconsistent with Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953). See Bertha Bldg. Corp. v. National Theatres Corp., 248 F.2d 833 (2d Cir. 1957); H. L. Moore Drug Exchange, Inc., supra. Whatever the authority of Giusti in the antitrust realm, careful examination of the case and of subsequent decisions explicating it discloses that its delineation of what may be deemed “transacting business” in a district by foreign co-conspirators is not as sweeping as plaintiffs assert." }, { "docid": "1236204", "title": "", "text": "personal jurisdiction, improper venue, and insufficiency of service of process. These matters are governed by Section 12 of the Clayton Act, 15 U.S.C. § 22, which provides: Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found. The uncontested allegations before the court are that Clayco is a Delaware corporation, that its principal and only place of business is in New York, that it has never conducted business in this district, and that it has no officers, agents, offices, property, or other links in California or in this district. Once again, then, there appears a prima facie showing under the relevant statute that jurisdiction and venue are not here properly laid. To overcome this showing, plaintiffs rely upon the so-called “co-conspirator” or “Giusti” theory of antitrust venue— a doctrine which had its origin in the case of Giusti v. Pyrotechnic Industries, 156 F.2d 351 (9th Cir.), cert, den., Triumph Explosives v. Giusti, 329 U.S. 787, 67 S.Ct. 355, 91 L.Ed. 675 (1946). Plaintiffs’ reading of Giusti and the cases following it is that, by virtue of an agency principle, “co-conspirators are deemed to be found or to transact business within a district under 15 U.S.C.A. § 22 when one of them is found or transacts business within the district.” Defendant Clayco, in reply, questions whether the Giusti theory is presently tenable in any form, and, if so, whether it is as broad as plaintiffs construe it. In the Ninth Circuit, any assessment of the possible applicability of the co-conspirator principle requires an understanding of Giusti itself. Examination of the decision immediately discloses that the case is not direct authority on the sweep of the Clayton Act’s venue provisions. Rather, Giusti involved an interpretation of the service of process requirements of the California Civil Code. In holding that" }, { "docid": "2180596", "title": "", "text": "67 S.Ct. 355, 91 L.Ed. 675 (1946). In Giusti, plaintiff brought an antitrust action against Triumph, a Delaware corporation, which was itself an association of corporations which manufactured fireworks, all of which member corporations were also named as defendants. These defendant corporations came from several states, including California, which was the state of the district of suit. Plaintiff’s complaint dealt with events in the years 1935 and 1936 and charged defendants with conspiring to fix prices of fireworks and to monopolize the fireworks industry. Triumph had transacted business in California, but apparently such business had been commenced subsequent to 1935-1936. In 1943 Triumph filed a certificate of withdrawal from interstate business with the California Secretary of State, which provided pursuant to state statute that Triumph would consent to service of process upon the Secretary of State in any action upon a liability incurred within the state prior to withdrawal. Plaintiff in Giusti duly served the California Secretary of State, but Triumph objected, contending that any liability to plaintiff was incurred not by Triumph but rather by its alleged co-conspirators. The court rejected Triumph’s contention, finding that the co-conspirators were Triumph’s agents and that the acts of the conspirators directed towards securing a monopoly constituted the “transaction of business”. By upholding the challenged service of process the court ruled that any liability which Triumph incurred to plaintiff through the acts of its co-conspirators cum agents was a liability incurred through the transaction of business within the state. Triumph also raised objections to venue, but the court did not consider Clayton Act § 12 at all in determining the issue of proper venue. Rather, the court took the view that Triumph had waived all objections to venue by filing the certificate of withdrawal and by designating an agent for the service of process. The Giusti case has generated a great deal of confusion among later courts both as to what in fact that case stands for and whether or not the case is at all viable in the light of certain pronouncements in the Supreme Court decision of Banker’s Life & Cas." }, { "docid": "20195928", "title": "", "text": "with what the Court called “the principle enunciated in the Giusti case * * * that venue is proper as to all conspirators in the district in which the impact of the conspiracy caused the damage to the plaintiff.” Those cases do indeed appear to be in accord with that view. But with the utmost deference, I cannot agree •that the Giusti decision “enunciated” any 'such “principle” as to venue under Sec. 12 of the Clayton Act. The Giusti case was an action for treble, damages brought in the Northern District of California against domestic and foreign corporations. Process against one of the latter, Triumph Explosives, Inc., was served on the Secretary of State of California. Triumph had withdrawn from the state prior to suit though earlier it had been qualified and had transacted business there. It appeared specially to challenge the service. It also moved separately to dismiss for lack of venue under Sec. 12 of the Clayton Act, on the ground that at the time of suit it was not “found” or “transacting business” in the California district. The District Court granted both motions and Giusti appealed. The complaint alleged a conspiracy by the defendants to monopolize and fix prices in, the sale of fireworks, beginning ■in 1935 and continuing up to the commencement of suit in 1944. Triumph conceded in its affidavits and brief that, prior to 1939 it had sold and shipped its products to dealers in California; in 1939 its Vice-President in charge of sales opened its office and warehouse in Oakland and thereafter transacted its business in California continuously until some unspecified date after the outbreak of World War II; in December, 1943 it filed a Certificate of Withdrawal from business in California for which, pursuant to California law, it had qualified in January, 1940. Under California law withdrawal was conditioned on the corporation’s written consent to substituted service on the Secretary of State “in any action upon any liability or obligation incurred within this State prior to the filing of the Certificate of Withdrawal.” The Circuit Court’s opinion, except for -the last paragraph," }, { "docid": "20195927", "title": "", "text": "12 of the Clayton Act” and that, “it is now the settled rule in the 2nd, 4th, 5th and 9th Circuits that for the purpose of determining venue in an anti-trust conspiracy case, the situs of the acts of the conspirators and the place of impact of the conspiracy will control.” (Emphasis supplied.) The only appellate court decision cited in support of this “rule” is Giusti v. Pyrotechnic Industries by the Court of Appeals for the Ninth Circuit. The other five decisions cited are by District Courts in California, New York, Virginia and Louisiana. Whatever may be true elsewhere, there is certainly no such “settled rule” in the Second Circuit. The contrary decisión in Hansen Packing Co. v. Armour supra, has not been overruled. The plaintiffs, in asserting that there is a “settled rule” in the Second Circuit, appear to rely on the decision in Bertha Building Corp. v. National Theatres, supra. The Court in that case reviewed the other four district court decisions referred to above and found them all to be in accord with what the Court called “the principle enunciated in the Giusti case * * * that venue is proper as to all conspirators in the district in which the impact of the conspiracy caused the damage to the plaintiff.” Those cases do indeed appear to be in accord with that view. But with the utmost deference, I cannot agree •that the Giusti decision “enunciated” any 'such “principle” as to venue under Sec. 12 of the Clayton Act. The Giusti case was an action for treble, damages brought in the Northern District of California against domestic and foreign corporations. Process against one of the latter, Triumph Explosives, Inc., was served on the Secretary of State of California. Triumph had withdrawn from the state prior to suit though earlier it had been qualified and had transacted business there. It appeared specially to challenge the service. It also moved separately to dismiss for lack of venue under Sec. 12 of the Clayton Act, on the ground that at the time of suit it was not “found” or “transacting" }, { "docid": "4926298", "title": "", "text": "constitutes a substantial part of the ordinary business of the corporation, and is at least of some duration. Windsor Theatre Co. v. Loew’s Inc., 79 F.Supp. 871 (D.C.D.C.1948). See, also Eastman Kodak Co. of New York v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927). Ordinarily, whether a corporation “transacts business” in a particular district is a question of fact in its ordinary unteehnical meaning. United States v. Scophony Corp., 333 U.S. 795, 819, 68 S.Ct. 855, 92 L.Ed. 1091 (1948); Green v. United States Chewing Gum Mfg. Co., 224 F.2d 369 (5th Cir. 1955); Sunbury Wire Rope Mfg. Co. v. United States Steel Corp., 129 F.Supp. 425 (E.D.Pa.1955). We have examined the numerous affidavits which have been received from the parties on this issue, relating to the extent and nature of defendant’s business in this district. We need not, however, decide whether plaintiffs have sustained their burden of showing that this defendant has in fact transacted business within this district. In Giusti v. Pyrotechnic Industries, 156 F.2d 351 (9th Cir. 1946), cert. den., 329 U.S. 787, 67 S.Ct. 355, 91 L.Ed. 675 (1946), the Court held that California members of an alleged conspiracy were agents of a foreign corporation member, and that the foreign corporation member transacts business through them within the meaning of Cal.Civil Code, § 406a, a local service of process statute. In De Golia v. Twentieth Century-Fox Film Corp., 140 F.Supp. 316 (N.D.Cal. 1954), the Court, citing Giusti, supra, for this proposition, held further that, as a foreign corporate defendant’s participation in the conspiracy, if any, cannot be ascertained before trial, and as such participation will determine whether the defendant was transacting business in the State, a service of process, made pursuant to 15 U.S.C. § 22, should not be quashed prior to a trial at which the defendant could apply for appropriate relief, in the event the defendant’s participation was not there established. We recognize that the Giusti doctrine has not received unanimous approval in other circuits, see Bertha Bldg. Corp. v. National Theatres Corp., 248 F.2d 833 (2d" }, { "docid": "6442042", "title": "", "text": "862, 92 L.Ed. 1091 (1948) on the basis of which they urge that the charged conspiracy itself sufficiently would constitute the transaction of business within the district as to afford venue and permit service of process. This view is supported more or less by the following authorities cited by plaintiffs’ counsel: Giusti v. Pyrotechnic Industries, 156 F.2d 351 (9 Cir. 1946); Steiner v. 20th Century-Fox Film Corporation, 232 F.2d 190 (9 Cir. 1956); R. J. Coulter Funeral Home v. National Burial Ins. Co., 192 F.Supp. 522 (D.C.Tenn.1960); DeGolia v. Twentieth Century-Fox Film Corporation, 140 F.Supp. 316 (D.C.Cal.1953); and Ross-Bart Port Theatre, Inc. v. Eagle Lion Films, Inc., 140 F.Supp. 401 (D.C.Va.1954); cf. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953); and Bertha Building Corp. v. National Theatres Corp., 248 F.2d 833 (2 Cir. 1957). The Giusti thesis to the effect that a conspiracy entered into or having impact within a particular district itself could sustain venue in that district under the antitrust laws is not impressive. I cannot reconcile the broad but yet limited statutory rules on venue and service with the idea that in effect there are no limitations as to venue and service in antitrust matters so long as the action is brought where a conspiracy was entered into or resulting damages occurred. Nor can I accede to the proposition advanced by the plaintiffs on the basis of DeGolia v. Twentieth Century-Fox Film Corporation, supra, that since the defendants’ possible participation in the conspiracy cannot be ascertained before trial, and as such participation will determine whether defendants are doing business in the state, the plaintiff’s complaint should not be dismissed nor process quashed at this stage but should a trial of the issues fail to establish defendants’ participation in the alleged conspiracy, defendants may apply for appropriate relief. That would mean that as to every alleged conspiracy, irrespective of any other suggestion of venue, a case could proceed against a foreign corporation with the same effect as if venue were properly laid, until at least the time of trial," }, { "docid": "1236205", "title": "", "text": "“Giusti” theory of antitrust venue— a doctrine which had its origin in the case of Giusti v. Pyrotechnic Industries, 156 F.2d 351 (9th Cir.), cert, den., Triumph Explosives v. Giusti, 329 U.S. 787, 67 S.Ct. 355, 91 L.Ed. 675 (1946). Plaintiffs’ reading of Giusti and the cases following it is that, by virtue of an agency principle, “co-conspirators are deemed to be found or to transact business within a district under 15 U.S.C.A. § 22 when one of them is found or transacts business within the district.” Defendant Clayco, in reply, questions whether the Giusti theory is presently tenable in any form, and, if so, whether it is as broad as plaintiffs construe it. In the Ninth Circuit, any assessment of the possible applicability of the co-conspirator principle requires an understanding of Giusti itself. Examination of the decision immediately discloses that the case is not direct authority on the sweep of the Clayton Act’s venue provisions. Rather, Giusti involved an interpretation of the service of process requirements of the California Civil Code. In holding that the out-of-state defendant had “transacted business” in California within the meaning of then section 406a of the California Civil Code, the court decided first that the acts of the defendant’s co-conspirators alleged in the complaint constituted “transacting business” in California, and then applied an agency principle to impute this “transacting” to the foreign defendant. 156 F.2d at 353-354. The co-conspirator theory of “transacting business” within the meaning of Section 12 of the Clayton Act — to which Giusti has been said to have given “illegitimate birth” — has been rejected by the only court of appeals squarely confronted with it, and has (in dictum) been termed “frivolous” by the Supreme Court. While it has been observed, as plaintiffs herein stress, that the venue provisions for private antitrust actions are intended to give injured plaintiffs a broad choice of forum, the co-conspirator approach, allowing venue ás to defendants with no direct contacts with the forum district, has frequently been rejected as an unwarranted extension, beyond the legislative purpose. E. g., Bankers Life & Casualty Co. v." }, { "docid": "20195933", "title": "", "text": "structure” whose managers actually “were present in California transacting business of the corporate structure and of direct interest to National.” Accordingly, “as alternative grounds for dismissing the complaint as barred by the California statute of limitations,” the Court found “as a matter of fact that within the interpretation given Section. 12 of the Clayton Act * * * in United States v. Scophony Corp., 1947, 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091 * * * and Eastman Kodak Co. v. Southern Photo Materials Company, 1927, 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 * * * National Theatres was transacting business in California.” ‘The Scophony decision certainly does not accord with the so-called Giusti “principle.” In that action, brought in this district, the Government sued Scophony, a British corporation, together with several American corporations and others, to restrain an alleged conspiracy in violation of the Anti-trust laws. Scophony, whose principal office was in London, challenged venue on the ground that it did not “transact business” and was not “found” in the Southern District of New York. The District Court, 66 F.Supp. 666 agreed and dismissed the suit. The Supreme Court reversed; not however on the ground that the mere allegation of conspiracy made Scophony’s alleged co-conspirators here its agents for purposes of venue, a theory the Court did not mention, but because on the facts of record it found that Scophony, through two of its officials who were served here, had at all material times carried on in the Southern District of New York “a continuous course of business” in furtherance of a fundamental part of Scophony’s corporate objectives. If in a civil anti-trust conspiracy case the situs of a foreign corporation’s “ordinary commercial activities” is irrelevant to the issue of venue, as the plaintiffs contend, it is surprising that the Supreme Court gave it so much attention. Application of the plaintiffs’ theory would have rendered unnecessary the Court’s extensive and detailed examination of Scophony’s corporate purposes and the activities of its officials here in furtherance thereof. In Eastman the Court had to decide whether the foreign" }, { "docid": "1236209", "title": "", "text": "Plaintiffs’ contention that any transacting of business in the district by a defendant may be imputed to co-conspirators — whether or not connected with the conspiracy — carries the co-conspirator rationale beyond its own logic, because one co-conspirator is deemed the agent of the others only with respect to activities in furtherance of the conspiracy. This limitation is implicit in those cases that have viewed Giusti as allowing venue for absent co-conspirators only when conspiratorial agreement or overt acts are alleged to have occurred within the district. E. g., Ziegler Chemical & Mineral Corp. v. Standard Oil of California, 32 F.R.D. 241, 243 (N.D.Cal.1962). But Giusti itself is even more limited: in order to hold that the absent co-conspirator had transacted business within California, the court in Giusti not only relied upon acts of conspiracy in the state but was at pains to establish that these acts themselves constituted the transaction of business. 156 F.2d at 353-354. Thus, to come within Giusti the complaint must allege conspiratorial agreement or overt acts within the district that constituted the transaction of busi ness. Several district courts have concurred in this precise reading of Giusti. E. g., California Clippers, Inc. v. United States Soccer Football Ass’n, 314 F.Supp. 1057, 1067 (N.D.Cal.1970); West Virginia v. Morton International, supra, 264 F.Supp. at 694-695; Commonwealth Edison Co. v. Federal Pacific Electric Co., 208 F.Supp. 936, 942-943 (N.D.Ill.1962); Periodical Distributors, Inc. v. American News Co., 1961 Trade Cas. ¶ 70,011, at 78,008-09 (S.D.N.Y.1961). Reasoning, then, from Giusti as properly construed, since the instant complaint nowhere alleges as part of the conspiracy any doing of business in the Central District of California, Clayco cannot be deemed to be transacting business here. It therefore appears that both jurisdiction, see International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and venue, 15 U.S.C. § 22, are lacking as to Clayco. Since Clayco does not come within the terms of 15 U.S.C. § 22, service of process upon its statutory agent in Delaware pursuant to that section was insufficient as to Clayco, see West Virginia" }, { "docid": "14815947", "title": "", "text": "to participate in the case as a defendant, places a “peculiarly vexatious” burden and hardship upon it. Under 28 U.S.C. § 1651(a), this court may issue a writ of mandamus necessary or appropriate in aid of our appellate jurisdiction and agreeable to the usages and principles of law. For present purposes we will assume that, under this statute, we have power to review by mandamus, a district court order denying, without prejudice, motions to dismiss a complaint for lack of venue and personal jurisdiction, and denying without prejudice a motion to quash service. The question remains whether, under the facts of this case, we should exert that power by reviewing the order of December 9, 1963, in the mandamus proceeding before us. The determina tion of this question calls for the exercise of a sound discretion In order to determine how our discretion should be exercised in this matter, it is necessary to have in mind the grounds on which the district court denied the motions. The Company advanced two reasons in the district court why venue as to the Association existed under section 12 of the Clayton Act. The first of these, based on our decision in Giusti v. Pyrotechnic Industries, Inc., 9 Cir., 156 F.2d 351, was that a foreign corporation, not otherwise doing business in California, transacts business in California through the acts of co-conspirators. The second argument was that, apart from Giusti, the Company would be áble to show that the Association transacts business in California. The district court found merit in both of these arguments. It orally expressed the view that, under the Giusti decision, participation as a co-conspirator was a sufficient transaction of business in the Southern District of California to establish venue in that district within the meaning of the statute. It also stated that the question of venue was one of fact, and that the plaintiff ought to have the opportunity to establish, as a fact, that the Association transacts business in California. Apparently because of this second ground for denying the motion to dismiss, the district court declined the request of" }, { "docid": "4898330", "title": "", "text": "ZIRPOLI, District Judge. This action was brought by plaintiff Ziegler Chemical and Mineral Corporation, charging a conspiracy in violation of the anti-trust laws by four Delaware corporations, Standard Oil Company of California, California Research Corporation, Barber Oil Corporation and American Gilsonite Company. California Research is Standard’s wholly owned subsidiary. American Gilsonite is jointly owned by Standard and Barber, each holding one-half of its stock. Standard and California Research are admittedly in business in this District, and American Gilsonite has voluntarily submitted to the Court’s jurisdiction in this case. Barber Oil Corporation, however, disclaims any business contact with this District and has moved for dismissal as a party defendant on the ground that the transaction of business in this District is a prerequisite for both in personam jurisdiction and venue under Section 12 of the Clayton Act, 15 U.S.C. § 22. Plaintiff contends that the acts done by Barber’s codefendants in this District in furtherance of the alleged conspiracy in violation of the anti-trust laws are imputable to Barber and constitute the transaction of business by it within the meaning of Section 12 of the Clayton Act. In support of this contention, plaintiff relies on the case of Giusti v. Pyrotechnic Industries, 9 Cir., 156 F.2d 351 (1946), in which the Court of Appeals for this circuit held that acts done within this state in furtherance of a conspiracy in restraint of trade by the California members of the conspiracy constituted business transacted within the state by an out-of-state conspirator who did not otherwise do business here. The Giusti decision was made in reference to a California statute providing for substitute service of process upon foreign corporations in actions arising out of business transacted in California. However, it has been held by this Court to be controlling in determining whether a corporation has transacted business in this District within the meaning of Section 12 of the Clayton Act. E. B. De Golia v. Twentieth Century Fox Film Corp., D.C., 140 F.Supp. 316 (1953); The State of California v. Brunswick Company, D.C., 32 F.R.D. 36 (decision dated July 11, 1961, denying motion" }, { "docid": "4926299", "title": "", "text": "(9th Cir. 1946), cert. den., 329 U.S. 787, 67 S.Ct. 355, 91 L.Ed. 675 (1946), the Court held that California members of an alleged conspiracy were agents of a foreign corporation member, and that the foreign corporation member transacts business through them within the meaning of Cal.Civil Code, § 406a, a local service of process statute. In De Golia v. Twentieth Century-Fox Film Corp., 140 F.Supp. 316 (N.D.Cal. 1954), the Court, citing Giusti, supra, for this proposition, held further that, as a foreign corporate defendant’s participation in the conspiracy, if any, cannot be ascertained before trial, and as such participation will determine whether the defendant was transacting business in the State, a service of process, made pursuant to 15 U.S.C. § 22, should not be quashed prior to a trial at which the defendant could apply for appropriate relief, in the event the defendant’s participation was not there established. We recognize that the Giusti doctrine has not received unanimous approval in other circuits, see Bertha Bldg. Corp. v. National Theatres Corp., 248 F.2d 833 (2d Cir. 1957); and in other districts, see, Independent Productions Corp. v. Loew’s Inc., 148 F.Supp. 460 (S.D.N.Y. 1957); Goldlawr, Inc. v. Shubert, 169 F.Supp. 677 (E.D.Pa.1958). We further note that there exists strong contrary dicta in both the majority and dissenting opinions in Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 386, 74 S.Ct. 145, 98 L.Ed. 106 (1953). We nonetheless follow the Giusti case, because it is the rule in this circuit and in this district, De Golia, supra. In doing so, however, we may note that this application of agency principles to venue in anti-trust actions has been recognized and approved in other districts. See, Riss & Co. v. Assn. of Western Railways, 159 F.Supp. 288, 295, 296 (D.C. D.C.1958); Ross-Bart Port Theatre, Inc. v. Eagle Lion Films, Inc., 140 F.Supp. 401 (E.D.Va.1954); Steiner v. Twentieth Century-Fox Film Corp., 140 F.Supp. 906 (S.D.Cal.1953); Don George, Inc. v. Paramount Pictures, Inc., 111 F.Supp. 458 (W.D.La.1951). Accordingly, we deny defendant’s motion to quash without prejudice to its renewal at any time during" } ]

[ { "docid": "22410478", "title": "", "text": "we overrule this Court’s multiple-NOD holding in Whitt, 1 Vet.App. at 40. There can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. See 57 Fed.Reg. 4088, 4135 (1992) (proposed to be codified at 38 C.F.R. § 20.201(b)). Accordingly, we also overrule Malgapo, 1 Vet.App. at 398-99, to the extent that it holds that a 1-9 Appeal as to a particular claim can itself be an NOD if filed after an NOD has already been filed as to that claim. Third, where the BVA remands to an RO for further development and readjudication a claim previously decided by the RO and properly appealed to the BVA (see Rowell, 4 Vet.App. at 14-16) (unless all benefits sought are awarded on remand or the claimant expressly withdraws the appeal), an expression of disagreement with a subsequent RO readjudication on remand cannot be an NOD. Fourth, where the BVA remands to an RO for development and adjudication a claim not decided by the RO (and as to which no NOD has ever been filed, and which thus is not an appealed claim) and the claimant files a timely expression of disagreement with the RO, that expression is an NOD as to that claim, which then becomes an appealed claim, even though the BVA may also have remanded to the RO concurrently a claim which had been previously decided by the RO, as to which a prior NOD had been timely filed, and which thus was already an appealed claim. G. Retroactivity The Court has considered the question of retroactive application of the holdings made today and takes note of two lines of Federal authority. One holds that a jurisdictional holding cannot be made prospective only. See Budinich v. Dickinson and Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988) (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-80, 101 S.Ct. 669," } ]

[ { "docid": "1149135", "title": "", "text": "September 1991, a VA social worker concluded that “this veteran would find it extremely difficult to work unless it were something he were to do in the home, by himself.” That same month Dr. Dorsey, a VA psychiatrist, determined that the appellant was equally disabled by PTSD and a schizoaffective disorder. . A Statement of the Case (SOC) was furnished in November 1991. The SOC reflected that in May 1990 the RO had denied the appellant’s claim for a TDIU rating, and had sua sponte determined that the appellant was not entitled to an increased disability rating for PTSD. In November 1991, Dr. Valenstein submitted another statement in which she opined that the appellant was totally disabled from his psychiatric disorders and’was not capable of industrial employment. On June 24, 1992, the Board determined that the appellant was not entitled to an increased disability rating for his PTSD, and that the appellant was not entitled to a TDIU rating as his service-connected disabilities were not profoundly disabling. II. ANALYSIS A. Increased Evaluation for PTSD As an initial matter, the Court must determine whether it has jurisdiction over the Board’s decision to deny the appellant an increased disability rating for his service-connected PTSD. This Court’s jurisdiction derives exclusively from the statutory grant of authority provided by Congress and the Court may not extend its jurisdiction beyond that permitted by law. See Prenzler v. Derwinski, 928 F.2d 892 (Fed.Cir.1991). As established by the Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note), this Court has jurisdiction only over cases in which an NOD was filed on or after November 18, 1988. The Court has previously held that: There can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.... [Wjhere the BVA remands to an RO for further development and readjudication a claim previously decided" }, { "docid": "9860480", "title": "", "text": "on the part of the RO, such error was alleged to have been in the later RO decision, not those dating back to 1971 and/or 1974. R. at 108-09 (“For the following stated reasons I appeal the previous decision as erroneous.” (Emphasis added.)). Since the appellant did not present a claim of clear and unmistakable error under 38 C.F.R. § 3.105(a), the BVA’s decision to that effect must be affirmed. That is not to say that the appellant cannot, in the future, present a claim that there was CUE under 38 C.F.R. § 3.105(a) in the 1971 and 1974 RO rating decisions; we hold only that, as a matter of law, he has yet to do so. B. The above notwithstanding, we turn now to the issue of whether a jurisdiction-conferring NOD was filed because this Article I Court has jurisdiction over only those claims for which a valid NOD was filed on or after November 18, 1988. Hamilton v. Brown, 4 Vet.App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994); Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note). For purposes of this analysis, we will assume that a cognizable claim of CUE was before the RO, either submitted directly by the appellant or on remand from the Board by virtue of the January 1992 argument. 1. “There can be only one valid NOD as to a particular claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton, 4 Vet.App. at 538; West v. Brown, 7 Vet.App. 329, 332 (1995) (en banc) (“A successful claimant has not had his ease fully adjudicated until there is a decision as to all essential elements, i.e., status, disability, service connection, rating.”). In order to determine which, if any, of the appellant’s filings might be a jurisdiction-conferring NOD, the Court must first address whether the appellant’s CUE claim is a claim different from his reopened claim for service connection. If the CUE claim is found to" }, { "docid": "10210210", "title": "", "text": "raised that was not previously adjudicated. There can be an NOD as to the new claim, and if subsequent to November 18, 1988, it will import jurisdiction to the Court as to that claim only. This NOD could not, of course, “revive” jurisdiction as to the initial, unrelated claim if the NOD as to that claim preceded the November 18, 1988, date. (This is the situation in Contreras v. Brown, 4 Vet.App. 528, 541-42 (1993) (consolidated with Hamilton)). Appellant concedes that, in accordance with the Hamilton analysis, there is no jurisdiction-creating NOD as to his claim for a total disability. However, he contends that his claim of service connection for PTSD was a new claim, and that his May 1990 expression of disagreement is, therefore, a valid NOD as to that claim. The expression of disagreement that raised the issue of PTSD was a disagreement with a rating that was rendered pursuant to a remand for readjudication where the RO had previously reduced benefits for a disability stemming from a service-connected “depressive neurosis.” The NOD filed as to that reduction was filed in May 1987 and is clearly, per Hamilton, not an NOD that would .give this Court jurisdiction. CONCLUSION The appeal is DISMISSED for lack of jurisdiction. STEINBERG, Judge, dissenting: I respectfully dissent from the Court’s opinion dismissing for lack of jurisdiction the veteran’s claim for service connection for post-traumatic stress disorder (PTSD). The Court has jurisdiction over any claim as to which a Notice of Disagreement (NOD) was filed on or after November 18, 1988. Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)). In Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), the Court held that “[tjhere can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” In the instant case, the majority holds that" }, { "docid": "22410474", "title": "", "text": "refers to the “issue or issues with which disagreement is expressed”. The word “claim” takes its statutory context from title 38 sections 5101(a) — “a claim” “for benefits to be paid or furnished” — and 5102, which, in effect, requires an application to be filed in making a claim for benefits. 38 U.S.C.A. §§ 5101(a), 5102 (West 1991); see also Tucker v. Derwinski, 2 Vet.App. 201, 202 (1992) (Court had jurisdiction over only one of three claims adjudicated by the BVA, because the other two claims had been the subject of pre-November 18, 1988, NODs and “the fact that the three appeals were fortuitously consolidated into one decision cannot give jurisdictional life to adjudications that Congress has forbidden this Court from considering”). The existing VA regulations deal with this very specifically by providing in 38 C.F.R. §§ 20.201 and 20.202 (1992) that the claimant is to specify in the NOD and 1-9 Appeal the issues with which he or she is expressing disagreement. The pending, proposed VA regulations would go further by providing a definition for “issue” and subissue. See 57 Fed.Reg. 4088, 4134 (1992) (proposing to add a new 38 C.F.R. § 20.3(k), quoted in part I.E.4, supra). 6. Not Allowing a New NOD After RO Proceedings Pursuant to a BVA Re- maná: Pursuant to the above analysis, it is clear where the BVA has remanded a claim to the RO (and especially clear where the BVA has expressly provided that the claim will automatically be returned to the BVA for consideration after the RO action on remand is completed) that no valid section 7105 NOD could be filed with respect to the RO’s adjudicative determinations on remand because the claim would still be on appeal to the BVA by virtue of the previous NOD and 1-9 Appeal. Since any expression of disagreement with the RO adjudications on remand could not be a section 7105 NOD for any claim as to which there was an adverse RO adjudication rendered prior to, and still pending, appeal to the BVA, any such document could not constitute an NOD conferring jurisdiction on" }, { "docid": "11961520", "title": "", "text": "also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). The Court has jurisdiction to review only those final BVA benefits decisions prior to which an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other agency of original jurisdiction. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note). The Court’s opinion in Hamilton v. Brown clearly established that “[tjhere can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant”, Hamilton, 4 Vet.App. 528, 538 (1993), aff'd 39 F.3d 1574, 1584-85 (Fed.Cir.1994). This case presents a question whether under West an original NOD disagreeing with an RO’s denial of service connection for a particular disability is the only valid NOD such that a subsequent RO adjudication (prior to the issuance of an SOC and the filing of a 1-9 Appeal) granting-service connection and assigning a rating would be part of the case to which the original NOD applied, and a request for a higher disability rating thus would not constitute a separate claim as to which a separate NOD may be filed. In West, the veteran’s claim for VA disability compensation had been denied in March 1987. In January 1988, he filed an NOD, and subsequently a VARO issued an SOC. In September 1988, the BVA remanded the claim. In March and December 1989, the RO continued the denial of service connection for the claim. In June 1990, the BVA granted entitlement to service connection and returned the claim to the RO for assignment of a disability rating. In July 1990, the RO assigned a rating and an effective date. In September 1990, the veteran filed an “NOD” as to the July 1990 RO decision. In March 1992, the BVA awarded an earlier effective date but" }, { "docid": "23365505", "title": "", "text": "subsequent claim of PTSD was inextricably intertwined with his rated claim for depressive neurosis and could not support a separate NOD that would confer jurisdiction). For purposes of determining the jurisdiction-creating NOD date, this case fits within the perimeter of Hamilton, 4 Vet.App. at 538: There can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.... [Wjhere the BVA remands to an RO for further development and readjudication a claim previously decided by the RO and properly appealed to the BVA ..., an expression of disagreement with a subsequent RO readjudieation on remand cannot be an NOD. The appellant filed an NOD in January 1988, disagreeing with the RO’s denial of his claim for a left eye disability. He also, pointing to the circumstances of his injury and an “incompetent” eye examination, asserted in the NOD that he should have been receiving compensation since his discharge, thus calling into question the correctness of the 1946 denial of his claim. In 1990 the BVA found that the appellant had shown that his left eye disability was aggravated by service and returned the ease to the RO to assign a disability rating. The Board, responding to the assertion of an earlier effective date, also found no CUE as to the 1946 RO decision. CUE, of course, was the only vehicle by which a 1946 date could be assigned. The BVA’s action in 1990 was not a final action with respect to the appellant’s appeal initiated by the January 1988 NOD; it was a final action only as to one element. The July 1990 RO decision which adjudicated the other elements was part and parcel of the case which originated when the appellant filed his request for disability benefits in February 1987. The NOD filed in 1990 merely sought a full and complete adjudication of that case. Appellate review of the appellant’s claim for left eye disability was" }, { "docid": "10225054", "title": "", "text": "RO sent appellant a Statement of the Case (SOC) explaining that there was no new and material evidence concerning the IU claim. R. at 192. On October 14, 1987, appellant appealed to the BVA. R. at 194. On January 27, 1989, the BVA remanded the IU claim for further development. On June 19, 1990, the BVA remanded the IU claim again. R. at 296. On July 19, 1991, after the requested development had been completed, the Board denied a total disability rating for IU purposes. Horowitz, BVA 91-30011, at 9. It is this claim, submitted to the VA in August 1986, that is currently on appeal to the Court. Recently, the Court held in Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (consolidated with Contreras v. Brown, and with Powell v. Brown, (en banc), that “where the BVA remands to an RO for further development and readjudi-cation a claim previously decided by the RO and properly appealed to the BVA ..., an expression of disagreement with a subsequent RO readjudication on remand cannot be an NOD.” In this case, appellant submitted an IU claim in August 1986, and the Board remanded the matter to the RO for further development and readjudication in January 1989 and in June 1990. Therefore, the proper reference point for determining if this Court has jurisdiction over the claim is October 14, 1987, when appellant filed an appeal to the BVA, expressing disagreement with an October 7,1987, SOC denying his IU claim. This October 14, 1987, expression of disagreement does not confer jurisdiction upon this Court. See Veterans’ Judicial Review Act, supra; 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302; Prenzler, supra. However, the Court's decision regarding the IU claim does not preclude appellant from filing a new IU claim with VA. Appellant also argues that the BVA’s August 1986 decision denying a total rating for IU purposes should be reversed because of “clear error.” Br. at 21. However, appellant raises the “clear and unmistakable error”, argument for the first time here in this Court. A claimant seeking to appeal an issue to the Court must" }, { "docid": "1149136", "title": "", "text": "an initial matter, the Court must determine whether it has jurisdiction over the Board’s decision to deny the appellant an increased disability rating for his service-connected PTSD. This Court’s jurisdiction derives exclusively from the statutory grant of authority provided by Congress and the Court may not extend its jurisdiction beyond that permitted by law. See Prenzler v. Derwinski, 928 F.2d 892 (Fed.Cir.1991). As established by the Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note), this Court has jurisdiction only over cases in which an NOD was filed on or after November 18, 1988. The Court has previously held that: There can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.... [Wjhere the BVA remands to an RO for further development and readjudication a claim previously decided by the RO and properly appealed to the BVA ..., an expression of disagreement with a subsequent RO readjudication on remand cannot be an NOD. Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc) (emphasis in original). The RO granted the appellant a 30% disability rating for PTSD in April 1988. An NOD was submitted in May 1988. In March 1990, the Board granted the appellant a 50% disability rating. The appellant had not asked for a specific rating in his appeal to the BVA, but merely appealed on the ground that the 30% rating was insufficient. Moreover, he did not seek reconsideration of the Board’s decision upgrading his rating. The May 1990 rating decision continued and implemented the 50% disability rating, and was part and parcel of the same claim. The appellant expressed no disagreement with the RO’s sua sponte decision to continue the 50% disability rating. See In the Matter of the Fee Agreement of William G. Smith in Case Number C 21 317 717, 6 Vet.App. 25, 27 (1993). The appellant" }, { "docid": "11968745", "title": "", "text": "to which the motion pertains. Issues not so identified will not be considered in the disposition of the motion. 38 C.F.R. § 20.1001(a). This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend that jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-79, 100 L.Ed.2d 811 (1988); see also Premier v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski 1 Vet.App. 2 (1990). In establishing this Court, Congress mandated that only cases “in which a notice of disagreement [has been] filed under section [7105] ... of title 38, United States Code, on or after [November 18, 1988]” would be heard by this Court. Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note); 38 U.S.C. § 7251 note; see also Burton v. Derwinski, 933 F.2d 988, 989 (Fed.Cir.1991) (“a notice of disagreement has a specific meaning in the context of these cases: it is a document that initiates an appeal from an agency of original jurisdiction.”). This Court, sitting en banc, has held that “[t]here can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed.Cir.1994). Thus, the jurisdiction-conferring NOD referred to in VJRA § 402 is a written communication that initiates appellate review of an initial determination by the agency of original jurisdiction. Hamilton, 39 F.3d at 1582, aff'g 4 Vet.App. at 535-37. Here, the- appellant filed an NOD in September 1990 respecting an RO decision refusing to reopen his claim. Propelled by that NOD, the BVA issued a decision in August 1991. In response to the August 1991 decision, the appellant filed a motion for reconsideration of that, and only that, Board decision. The" }, { "docid": "6782963", "title": "", "text": "agency of original jurisdiction. See Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402]; 38 U.S.C. § 7105; Barrera v. Gober, 122 F.3d 1030, 1031 (Fed.Cir.1997); Grantham v. Brown, 114 F.3d 1156, 1157 (Fed.Cir.1997); Velez, 11 Vet.App. at 157 (“Court has no jurisdiction over an issue absent a post-November 18, 1988, NOD, expressing disagreement with an RO’s decision on that issue or with an RO’s failure to adjudicate that [issue]”). An NOD is defined by regulation as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [RO] and a desire to contest the result”; it “must be in terms which can be reasonably construed as [expressing] disagreement with that determination and a desire for appellate review”. 38 C.F.R. § 20.201 (1997); see also Beyrle v. Brown, 9 Vet.App. 24, 27 (1996); Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc), aff'd, 39 F.3d 1574, 1584-85 (Fed.Cir. 1994). “Whether a document is an NOD is a question of law for the Court to determine de novo under 38 U.S.C. § 7261(a).” Beyrle, 9 Vet.App. at 27-28; see also Hamilton, 4 Vet.App. at 538-44 (determining whether jur-isdietionally valid NOD had been filed with respect to claim without having had such determination made by the Board), aff'd, 39 F.3d at 1584-85. There can be only one valid NOD as to a particular issue until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. See Hamilton, 4 Vet.App. at 531-32, aff'd, 39 F.3d 1581-85. Just as the Court’s jurisdiction is dependent on a jurisdiction-conferring NOD, the Board’s jurisdiction, too, derives from a claimant’s NOD. See Marsh v. West, 11 Vet.App. 468 (1998) (“untimely NOD deprives [BVA] of jurisdiction”); Garlejo v. Brown, 10 Vet.App. 229, 232 (1997) (Board did not err in refusing to adjudicate matter as to which no NOD was filed). When the Board has jurisdiction over a particular matter, that jurisdiction" }, { "docid": "22028318", "title": "", "text": "ORDER PER CURIAM. On June 19, 1991, appellant filed a Notice of Appeal listing September 25, 1990, as the date on which he filed his Notice of Disagreement (NOD). On August 4, 1992, the Court issued an opinion denying the motion of the Secretary of Veterans Affairs (Secretary) for summary affirmance, vacating the decision of the Board of Veterans’ Appeals (BVA), and remanding the matter. On August 18, 1992, the Secretary filed a motion to vacate the order and dismiss on the basis that the NOD was jurisdictionally invalid. Appellant, through his attorney, opposed the motion on the basis that appellant’s September 25, 1990, correspondence had been filed in response to a new rating action by the Department of Veterans Affairs Regional Office (RO) after the BVA had remanded the ease on April 30,1990. The Court stayed the case pending a decision in Hamilton v. Brown, 4 Vet.App. 528 (1993). The Court has jurisdiction only over cases in which an NOD was filed on or after November 18, 1988, see Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)). Although the record indicates that the BVA remanded appellant’s claim for additional readjudication in April 1990, there can be only one valid NOD as to a particular claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. Hamilton, 4 Vet-App. at 538. The initial NOD in this appeal was filed prior to November 18, 1988. On consideration of the foregoing, it is ORDERED that the stay in this case is dissolved. It is further ORDERED that the Secretary’s motion is granted, the Court’s order of August 4, 1992, is vacated, and this appeal is dismissed for lack of jurisdiction." }, { "docid": "23365515", "title": "", "text": "at 536 (emphasis added) (citations omitted). [Wjhere the BVA remands to an RO for further development and readjudication a claim previously decided by the RO ... an expression of disagreement with a subsequent RO readjudication on remand cannot be an NOD. Id. at 538-39 (emphasis added). E. Analysis 1. Finality of BVA decision: An underlying precept of this Court’s Hamilton opinion, in overruling this Court’s prior precedent in Whitt v. Derwinski, 1 Vet.App. 40 (1990), was that to be an NOD an expression of disagreement by a claimant must serve the function, provided for by 38 U.S.C. § 7105(a), of “securing entitlement to administrative appeal to the BVA”, Hamilton, 4 Vet.App. at 536, and be directed to “[an] issue or issues” decided by the RO, id. at 537; 38 C.F.R. § 20.201 (1994). Hence, we specifically held in Hamilton that a BVA “final appellate decision” on an issue exhausts the pre-decision NOD and requires a new one in order to place the case in appellate status on a new issue.’ Hamilton, 4 Vet.App. at 537. “In other words,” stated this Court in Hamilton, “only if the claimant would have to file another NOD in order to avoid an RO adjudication’s becoming final after a year could there be a subsequent NOD. See Rowell [v. Principi], 4 Vet.App. [9,] 15 [(1993)].” Ibid. VA regulations spell out that “all Board decisions are final on the date stamped on [their] face ... [w]ith the exception of ... [a] remand [which] is in the nature of a preliminary order and does not constitute a final decision of the Board.” 38 C.F.R. § 20.1100(a), (b) (1994). In the present case, after obtaining jurisdiction pursuant to the January 1988 NOD and after awarding service connection, the Board in June 1990 did not address the rating and effective-date issues and did not remand them to the RO. Indeed, it is not clear that the Board could have remanded this case for rating purposes. See 38 C.F.R. § 19.182(a) (1989) (now 38 C.F.R. § 19.9 (1994)) (authorizing Board to remand to RO to correct a procedural defect or" }, { "docid": "10141433", "title": "", "text": "The veteran died six days later on November 16,1986, and the death certificate listed the cause of death as cardiores-piratory arrest due to acute myocardial infarction. No autopsy was performed. At the time of his death, the veteran was still rated 40% for his service-connected disabilities. The appellant’s initial claim for death benefits was received by the VA on December 17,1986. An April 1987 rating decision denied service connection for the cause of veteran’s death stating that “the cause of death was not shown in service nor within the presumptive period.” The appellant filed a Notice of Disagreement (NOD) with respect to this rating decision in October 1987. On November 21, 1989, the BVA issued a decision denying entitlement to service connection for the cause of veteran’s death. In October 1990, the appellant submitted a forty-five page letter which summarized in great detail the veteran’s history. On January 30, 1991, the BVA vacated its November 1989 decision after it was discovered that the appellant had made two requests for a personal hearing which had been ignored. On May 14, 1991, the BVA issued a decision which denied the appellant entitlement to service connection for the cause of the veteran’s death. II. ANALYSIS In order for this Court to have jurisdiction over a claim on appeal from an adverse BVA decision, a claimant or his or her representative must have filed with the RO a valid NOD with respect to that claim on or after November 18, 1988. Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)) (VJRA § 402); see Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc). There can only be one valid NOD as to a particular claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. Hamilton, 4 Vet.App. at 538. On review of the record on appeal in this case, the original rating decision on the issue of service connection for the cause of the veteran’s death" }, { "docid": "10204428", "title": "", "text": "NEBEKER, Chief Judge: The Secretary moves to vacate this Court’s final memorandum decision remanding Mr. Breslow’s (veteran) case to the Board of Veterans’ Appeals (BVA or Board) (judgment issued on April 30, 1992). The Secretary had sought the remand, thereby confessing error in the Board’s decision. He now argues that, because the veteran’s Notice of Disagreement (NOD) was untimely, according to subsequent binding decisions, the Court did not have jurisdiction to decide the case and, therefore, the judgment is void. The veteran opposes this motion. We hold the final judgment in this case, decided consistent with the jurisdictional holding in Whitt v. Derwinski, 1 Vet.App. 40 (1990), later overruled, cannot be collaterally attacked as void. I. This Court has jurisdiction over any case in which an NOD was filed on or after November 18, 1988. See Veterans’ Judicial Review Act of 1988, Pub.L. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)). When the Court first addressed this case, the Court’s jurisprudence dictated that multiple NODs could be filed with respect to a claim and that an NOD which met the Department of Veterans Affairs regulatory requirement of 38 C.F.R. § 19.118 (1991) (replaced by 38 C.F.R. § 20.201 (1992)) would confer jurisdiction on this Court. See Whitt, supra. Because the NODs filed by the veteran on both issues were timely under Whitt, the Court considered his case and entered judgment on April 30, 1992. In Strott v. Derwinski, 964 F.2d 1124 (Fed. Cir.1992), however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) limited the Whitt decision and, subsequently, in Hamilton v. Brown, 4 Vet.App. 528 (1993), this Court en banc overruled Whitt, holding that “[tjhere can only be one valid NOD as to a particular claim, extending to all subsequent RO [regional office] and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton, 4 Vet.App. at 538. The Secretary, more than a year after the Court’s decision" }, { "docid": "11961519", "title": "", "text": "on appeal stated that an appeal had been taken from the December 1987 RO decision for, inter alia, a compensable evaluation for the left-eye condition, and confirmed that previous decision. Suppl.R. at 42. In a January 1991 BVA decision, the Board determined that it had jurisdiction over the veteran’s left-eye claim and remanded the ease to the RO so that the veteran could be furnished an SSOC that included a summary of pertinent law and regulations (regarding claims, other than the eye condition, that were also on appeal). R. at 126-27. In February 1991, the RO issued an SSOC. R. at 129-32. In the September 1991 BVA decision here on appeal, the Board, inter alia, denied a compensable evaluation for the veteran’s left-eye disability. Grantham, BVA 91-26911 at 8. C. Analysis This Court’s appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). The Court has jurisdiction to review only those final BVA benefits decisions prior to which an NOD was filed on or after November 18, 1988, as to an underlying decision of an RO or other agency of original jurisdiction. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note). The Court’s opinion in Hamilton v. Brown clearly established that “[tjhere can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant”, Hamilton, 4 Vet.App. 528, 538 (1993), aff'd 39 F.3d 1574, 1584-85 (Fed.Cir.1994). This case presents a question whether under West an original NOD disagreeing with an RO’s denial of service connection for a particular disability is the only valid NOD such" }, { "docid": "10210209", "title": "", "text": "May 1990 expression of disagreement was, therefore, merely a disagreement with a subsequent readjudication of a remanded claim. See Calvert v. Brown, 5 Vet.App. 461 (1993) (per curiam order). In accordance with Hamilton, supra, we are constrained to hold that the only NOD filed was the NOD filed in May 1987 protesting the reduction of benefits stemming from the appellant’s mental disability. The majority takes note of our colleague’s dissent. His analysis, try as it might to show otherwise, establishes conclusively that the PTSD issue was part and parcel of the readjudication of the remanded claim. In Hamilton, the Court held that “[t]here can be only one valid NOD as to a particular claim, extending to all subsequent RO and BYA adjudications on the same claim_ [WJhere the BVA remands to an RO for further development and readjudication ... an expression of disagreement with a subsequent RO read-judication on remand cannot be an NOD.” Hamilton, 4 Vet.App. at 538. The only exception is where, on remand of one claim, a separate and distinct claim is raised that was not previously adjudicated. There can be an NOD as to the new claim, and if subsequent to November 18, 1988, it will import jurisdiction to the Court as to that claim only. This NOD could not, of course, “revive” jurisdiction as to the initial, unrelated claim if the NOD as to that claim preceded the November 18, 1988, date. (This is the situation in Contreras v. Brown, 4 Vet.App. 528, 541-42 (1993) (consolidated with Hamilton)). Appellant concedes that, in accordance with the Hamilton analysis, there is no jurisdiction-creating NOD as to his claim for a total disability. However, he contends that his claim of service connection for PTSD was a new claim, and that his May 1990 expression of disagreement is, therefore, a valid NOD as to that claim. The expression of disagreement that raised the issue of PTSD was a disagreement with a rating that was rendered pursuant to a remand for readjudication where the RO had previously reduced benefits for a disability stemming from a service-connected “depressive neurosis.” The NOD" }, { "docid": "23365504", "title": "", "text": "has not had his ease fully adjudicated until there is a decision as to all essential elements, i.e., status, disability, service connection, rating, and when in question, effective date. When, as here, the RO denies- the claim at the threshold because of lack of service connection, it had neither the obligation nor opportunity to assign a rating to the disability or, when in question, assign an effective date. Therefore, when, as in this case, there is a reversal on the question of service connection on appeal by the BVA, the ease is, necessarily, returned for adjudication of the other essential elements. However, when the ease is returned to the RO, it is the same case upon which the RO originally acted. The NOD as to that original adjudication initiated the appeal that ultimately required further adjudication. The fact remains that these further adjudications of the case are inextricably part of the case originally filed and are extensions of the appeal that was filed. See Ephraim v. Brown, 5 Vet.App. 549, 550 (1993) (holding that veteran’s subsequent claim of PTSD was inextricably intertwined with his rated claim for depressive neurosis and could not support a separate NOD that would confer jurisdiction). For purposes of determining the jurisdiction-creating NOD date, this case fits within the perimeter of Hamilton, 4 Vet.App. at 538: There can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.... [Wjhere the BVA remands to an RO for further development and readjudication a claim previously decided by the RO and properly appealed to the BVA ..., an expression of disagreement with a subsequent RO readjudieation on remand cannot be an NOD. The appellant filed an NOD in January 1988, disagreeing with the RO’s denial of his claim for a left eye disability. He also, pointing to the circumstances of his injury and an “incompetent” eye examination, asserted in the NOD that he should have" }, { "docid": "1103716", "title": "", "text": "claim as to arthritis and myalgia, the BVA stated that “the service medical records are negative for those disorders”, and that a musculoskeletal disability was not shown until many years after the veteran’s military service and not until after his 1963 accident. Id. at 10. II. Analysis A. The Court’s Jurisdiction Over the Kidney-Disorder Claim Although neither party has raised the issue, the Court must first determine whether it has jurisdiction over the appealed claim. See Phillips v. General Services Admin., 924 F.2d 1577, 1579 (Fed.Cir.1991); Fugere v. Derwinski, 972 F.2d 331, 334 n. 5 (Fed.Cir.1992); Noll v. Brown, 5 Vet.App. 80, 82 (1993); Hamilton v. Brown, 4 Vet.App. 528, 541 (1993) (en banc). In order for this Court to have jurisdiction over a claim on appeal from an adverse BVA decision, a claimant or his or her representative must have filed with an RO a valid NOD with respect to that claim on or after November 18, 1988. Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) (VJRA § 402); see Hamilton, 4 Vet.App. at 531. Furthermore, Hamilton held: “There can be only one valid NOD as to a particular claim until a. final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” Hamilton, 4 Vet.App. at 538. To be valid for any purpose, an NOD must be in writing and must be filed by the claimant or his or her representative within one year after “the date of mailing of notice of the result of initial review or determination”. 38 U.S.C. § 7105(b)(1); see Rowell v. Principle 4 Vet.App. 9, 15 (1993), A BVA remand decision “is in the nature of a preliminary order and does not constitute a final Board decision.” 38 C.F.R. § 20.1100(b) (1993). Here, the veteran filed an NOD in May 1987 as to the RO’s disallowance of his claims for service connection for a kidney disorder, hypertension, myalgia, and arthritis. R. at 140. Those claims were pending on appeal to the" }, { "docid": "10210211", "title": "", "text": "filed as to that reduction was filed in May 1987 and is clearly, per Hamilton, not an NOD that would .give this Court jurisdiction. CONCLUSION The appeal is DISMISSED for lack of jurisdiction. STEINBERG, Judge, dissenting: I respectfully dissent from the Court’s opinion dismissing for lack of jurisdiction the veteran’s claim for service connection for post-traumatic stress disorder (PTSD). The Court has jurisdiction over any claim as to which a Notice of Disagreement (NOD) was filed on or after November 18, 1988. Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)). In Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), the Court held that “[tjhere can be only one valid NOD as to a particular claim, extending to all subsequent RO and BVA adjudications on the same claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.” In the instant case, the majority holds that a pre-VJRA NOD filed by the veteran (in May 1987) to initiate appeal of a June 1986 regional office (RO) decision reducing his service-connected disability rating for “depressive neurosis” necessarily comprehended the question of the veteran’s entitlement to service connection for PTSD, so that, under Hamilton, supra, the veteran could not have filed a valid NOD on or after November 18, 1988, with respect to the PTSD claim. In other words, the majority concludes that, on the facts of this case, the issue of whether the RO erred in reducing the veteran’s rating for service-connected depressive neurosis and the issue of the veteran’s entitlement to service connection for PTSD constitute a single “claim” under Hamilton. I disagree. The veteran’s May 1987 NOD was not filed in response to an RO decision on a specific claim for benefits filed by the veteran. Rather, it was filed in response to a decision, issued on the RO’s own initiative, reducing the rating for the veteran’s service-connected depressive neurosis. Prelim.R. at 16-17. I find absolutely no basis for concluding" }, { "docid": "10141434", "title": "", "text": "ignored. On May 14, 1991, the BVA issued a decision which denied the appellant entitlement to service connection for the cause of the veteran’s death. II. ANALYSIS In order for this Court to have jurisdiction over a claim on appeal from an adverse BVA decision, a claimant or his or her representative must have filed with the RO a valid NOD with respect to that claim on or after November 18, 1988. Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. § 7251 note (West 1991)) (VJRA § 402); see Hamilton v. Brown, 4 Vet.App. 528, 531 (1993) (en banc). There can only be one valid NOD as to a particular claim until a final RO or BVA decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. Hamilton, 4 Vet.App. at 538. On review of the record on appeal in this case, the original rating decision on the issue of service connection for the cause of the veteran’s death was issued in April 1987. An NOD was filed to that decision in October 1987. Therefore, under Hamilton, there is no jurisdictionally valid NOD on or after November 18, 1988. However, in response to the Court’s order dated May 12,1993, to show cause why this appeal should not be dismissed for lack of jurisdiction, the appellant argued that she made two distinct claims in her appeal: (1) a claim for dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1310 (West 1991) and (2) an alternative claim for DIC compensation under 38 U.S.C.A. § 1318(b) (West 1991). The appellant concedes that the Court lacks jurisdiction over the 38 U.S.C.A. § 1310 claim since the NOD was filed in October 1987. However, the appellant contends that the October 1987 NOD does not apply to the 38 U.S.C.A. § 1318(b) claim since this claim was raised for the first time in the appellant’s lengthy letter dated October 1990. Thus, the appellant argues, “any notice of disagreement with respect to a claim for benefits under 38 U.S.C. §" } ]

[ { "docid": "13974105", "title": "", "text": "the IRS. Borgeson v. United States, 757 F.2d 1071, 1073 (10th Cir.1985). That court wrote: The absence of the verification precludes the IRS from judging the “substantial correctness” of the return because the required “information” that the return has been verified under “penalty of perjury” is absent. Therefore, in light of the statute itself and the legislative history, the frivolous return penalty was properly imposed. Id. See also Green v. United States, 593 F.Supp. 1341, 1343-44 (N.D.Ind.1984). We agree. “It is well established in this Circuit, however, that the submission of a ‘return’ from which tax liability cannot be computed does not satisfy the statutory obligation to file.” Knighten v. Commis sioner, 702 F.2d 59, 61 (5th Cir.), cert. denied, 464 U.S. 897, 104 S.Ct. 249, 78 L.Ed.2d 237 (1983). Second, Mosher struck the jurat clause on his Form 1040 “due to a position which is frivolous” within the meaning of section 6702(a)(2)(A). There can be no doubt regarding the status of a tax form that is not verified under penalties of perjury as the Supreme Court held over fifty years ago that an unsworn tax return failed to satisfy the requirements of law. Lucas v. Pilliod Lumber Co., 281 U.S. 245, 50 S.Ct. 297, 74 L.Ed. 829 (1930). Moreover, the Internal Revenue Code requires that returns be verified under penalties of perjury and provides no exception to that rule. Code Sec. 6065. Thus, there is no conceivable legal foundation for striking the jurat and Mosher’s action in that regard must be viewed as frivolous as a matter of tax law. Since Mosher’s return did not contain information on which the substantial correctness of the self-assessment could be judged, and Mosher’s position was indeed frivolous, we conclude that the civil penalty was properly imposed. In conclusory terms Mosher seeks to justify his position by alleging violations of his right to a jury trial and other constitutional provisions, including the first, fourth, and fifth amendments. These contentions are meritless. Mosher was not denied a right to a jury trial since no genuine issue of fact remained that required a trial. Davis" } ]

[ { "docid": "1159920", "title": "", "text": "6702. The IRS requested that Het-tig execute a declaration identical to that contained in the Form 1040 jurat within thirty days. Hettig refused. Thereafter, the IRS assessed a $500 penalty against Hettig pursuant to section 6702. Hettig paid 15% of the penalty as provided by section 6703 and brought an action for a refund. The IRS subsequently filed a notice of levy with Hettig’s employer for the remaining balance of $451.44. In his complaint, Hettig admitted crossing out the portion of the jurat but claimed that it was pursuant to his rights of free expression and that the imposition of the penalty amounted to “Marxist oriented ideology.” The District Court granted summary judgment in favor of the IRS but denied its motion for sanctions. On appeal, Hettig raises the same issues as below. Under section 6702, the IRS may impose a $500 civil penalty on a taxpayer who files a return which (1) does not contain information on which the substantial correctness of the self-assessment may be judged, and (2) is based on a position which is frivolous. Mosher v. IRS, 775 F.2d 1292, 1294 (5th Cir.1985) (per curiam), cert. denied, 475 U.S. 1123, 106 S.Ct. 1645, 90 L.Ed.2d 189 (1986). Section 6065 provides that “any return ... required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that is made under the penalties of perjury.” A tax return that does not contain such a declaration does not contain information on which the substantial correctness of the self-assessment may be judged. Mosher, 775 F.2d at 1294; Borgeson v. United States, 757 F.2d 1071, 1073 (10th Cir.1985) (per curiam). Furthermore, “there is no conceivable legal foundation for striking the jurat.” Mosher, 775 F.2d at 1295; see also United States v. Lee, 455 U.S. 252, 260, 102 S.Ct. 1051, 1056-57, 71 L.Ed.2d 127 (1982) (the maintenance of a functional federal tax system is a sufficiently important governmental interest to justify incidental regulation upon first amendment rights). Moreover, section 6702 does not infringe upon a taxpayer’s first amendment rights because" }, { "docid": "13974104", "title": "", "text": "6065. Section 6061 provides that “any return, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall be signed in accordance with forms or regulations prescribed by the Secretary.” Similarly, section 6065 provides that “any return, declaration, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that is made under the penalties of perjury.” Although this Court has not yet interpreted section 6702 in the context of this specific conduct, Mosher’s conduct appears to fall directly within the prohibitions of the statute. First, by crossing out the jurat, Mosher refused to certify that the entries on the form were correct. Without this certification, the IRS could not properly process the return or assess the substantial correctness of his self-assessment. The Tenth Circuit, in addressing this identical issue, held that an income tax return which is not signed under penalties of perjury is invalid and cannot be processed by the IRS. Borgeson v. United States, 757 F.2d 1071, 1073 (10th Cir.1985). That court wrote: The absence of the verification precludes the IRS from judging the “substantial correctness” of the return because the required “information” that the return has been verified under “penalty of perjury” is absent. Therefore, in light of the statute itself and the legislative history, the frivolous return penalty was properly imposed. Id. See also Green v. United States, 593 F.Supp. 1341, 1343-44 (N.D.Ind.1984). We agree. “It is well established in this Circuit, however, that the submission of a ‘return’ from which tax liability cannot be computed does not satisfy the statutory obligation to file.” Knighten v. Commis sioner, 702 F.2d 59, 61 (5th Cir.), cert. denied, 464 U.S. 897, 104 S.Ct. 249, 78 L.Ed.2d 237 (1983). Second, Mosher struck the jurat clause on his Form 1040 “due to a position which is frivolous” within the meaning of section 6702(a)(2)(A). There can be no doubt regarding the status of a tax form that is not verified under penalties of perjury as the" }, { "docid": "10594375", "title": "", "text": "affd. 774 F.2d 426 (11th Cir. 1985). Few cases deal with the validity of a Form 1040 as a return where the only questionable modification is an addition to the preprinted language of the jurat. In Parkinson v. United States, supra, the taxpayer had typed in the following language above and below the jurat: “By filling out this form, and/or the attached forms, and/or by signing this form do I waver [sic] any of my rights under the Constitution of the United States of America.” * * * [614 F. Supp. at 105.] In Parkinson, there was also some question as to whether the jurat on the original Form 1040 had been stricken by the taxpayer when filed. However, the District Court stated that even if the taxpayer did not line out the jurat: it is undisputed that plaintiff attempted to assert some qualification to his signature to the jurat by his addition of words around the jurat itself, regardless of whether, in addition, he lined out the entire jurat. * * * Federal income tax liability is self-reported. A declaration under penalty of perjury is necessary to assure the correctness of the return information. Any alteration of the jurat throws into question the correctness of the return information and impedes the administration of the federal income tax laws. [Id. at 107; emphasis added.] The court concluded that the taxpayer had not filed a return “verified by a declaration under penalty of perjury.” Id. In the bankruptcy case of Schmitt u. United States, 140 Bankr. 571, 572 (W.D. Okla. 1992), the debtor qualified the jurat on his Forms 1040 with the following added language: “‘SIGNED UNDER DURESS, SEE STATEMENT ATTACHED.’” The attached statement read: “This return is signed under duress. I do not concede that my wages are taxable income under the law, however, I am acquiescing to the power of the State and I am filing this Return per the instructions of the I.R.S.” The bankruptcy judge held that the Forms 1040 did not constitute returns, stating: Our income tax system is voluntary and the Internal Revenue Service must" }, { "docid": "1159919", "title": "", "text": "PER CURIAM. Nandor Hettig appeals from the order of the District Court granting the government’s motion to dismiss and for summary judgment in Hettig’s action for refund of a penalty imposed under 26 U.S.C. § 6702 for filing a frivolous tax return. The government seeks sanctions against Hettig for filing a frivolous appeal. Hettig and his wife, Helen, submitted a joint Form 1040 return for the tax year 1985 which they signed. However, the portion of the jurat above Hettig’s signature stating that the signature was provided “under penalties of perjury” was crossed out. The remainder of Hettig’s return was properly filled out and claimed a refund of $323 to be applied to their 1986 estimated tax. In July 1986, the Internal Revenue Service (IRS) notified Hettig that the Form 1040 he filed for 1985 did not constitute a valid return and could not be processed because it was not signed under penalties of penury. Hettig was also informed that his return constituted a frivolous return and was subject to a $500 penalty under section 6702. The IRS requested that Het-tig execute a declaration identical to that contained in the Form 1040 jurat within thirty days. Hettig refused. Thereafter, the IRS assessed a $500 penalty against Hettig pursuant to section 6702. Hettig paid 15% of the penalty as provided by section 6703 and brought an action for a refund. The IRS subsequently filed a notice of levy with Hettig’s employer for the remaining balance of $451.44. In his complaint, Hettig admitted crossing out the portion of the jurat but claimed that it was pursuant to his rights of free expression and that the imposition of the penalty amounted to “Marxist oriented ideology.” The District Court granted summary judgment in favor of the IRS but denied its motion for sanctions. On appeal, Hettig raises the same issues as below. Under section 6702, the IRS may impose a $500 civil penalty on a taxpayer who files a return which (1) does not contain information on which the substantial correctness of the self-assessment may be judged, and (2) is based on a position" }, { "docid": "12808679", "title": "", "text": "failing to file returns, United States v. Bohrer, 807 F.2d 159, 161 (10th Cir.1986), as is evidence of substantial gross income during the years in which defendants failed to file. Id. at 161-62. See also United States v. Payne, 800 F.2d 227, 229 (10th Cir.1986). The focus of the Daweses’ determination that they are not required to file tax returns is their position that they cannot, based on religious beliefs, sign the Form 1040 because of the requirement that the return be made under penalty of perjury. This declaration they claim is an oath, which they say they are forbidden to take. This argument is totally unsupported by the law. The Supreme Court in United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), reversed a district court determination that defendant, a member of the Old Order Amish, was entitled to decline to withhold social security taxes from its employees and to pay the employer’s share of the taxes. Recognizing that Amish religious principles might be offended, id. at 257, 102 S.Ct. at 1055, the Court determined that not all burdens on religion are unconstitutional, id., and that because “the broad public interest in maintaining a sound tax system is of such high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.” Id. at 260, 102 S.Ct. at 1057. As relevant to these cases, the requirement that the tax return be signed under penalty of perjury is not an unconstitutional restriction on defendants’ rights to freedom of religion, Borgeson v. United States, 757 F.2d 1071, 1073 (10th Cir.1985), or free speech, Mosher v. IRS, 775 F.2d 1292, 1294-95 (5th Cir.1985) (citing Borgeson), cert. denied, 475 U.S. 1123, 106 S.Ct. 1645, 90 L.Ed.2d 189 (1986); Hettig v. United States, 845 F.2d 794, 795 (8th Cir.1988) (citing Mosher and Borgeson). Defendants’ other major argument was that the United States District Court for the District of Kansas lacked jurisdiction over the charged offenses. This too is without merit. Under 18 U.S.C. § 3231, federal district courts have exclusive jurisdiction over “all" }, { "docid": "10594373", "title": "", "text": "made under the penalties of perjury.” See also sec. 1.6065-l(a), Income Tax Regs. Section 6061 provides that returns “shall be signed in accordance with forms or regulations prescribed by the Secretary.” To facilitate compliance with these requirements, the Form 1040 “prescribed by the Secretary” includes a standard preprinted jurat, which states: Under penalties of perjury, I declare that I have examined this return, including accompanying schedules and statements, and to the best of my knowledge and belief, it is true, correct, and complete. Declaration of preparer (other than taxpayer) is based on all information of which preparer has any knowledge[ ] Immediately under this clause is a place for a taxpayer and spouse to sign and date the return. Where the taxpayer strikes or obliterates the jurat, the Form 1040, even if otherwise complete, accurate, and signed, does not constitute a return. United States v. Moore, supra at 834; Cupp v. Commissioner, 65 T.C. 68, 78-79 (1975), affd. without published opinion 559 F.2d 1207 (3d Cir. 1977). A tax return without the jurat “does not contain information on which the substantial correctness of the self-assessment may be judged”. Mosher v. Internal Revenue Service, 775 F.2d 1292, 1294 (5th Cir. 1985) (per curiam); Borgeson v. United States, 757 F.2d 1071, 1073 (10th Cir. 1985) (per curiam). Likewise, alterations of portions of the jurat also invalidate an otherwise complete and accurate return. Hettig v. United States, 845 F.2d 794, 795 (8th Cir. 1988) (per curiam). Tax protesters often add language under the jurat or signature such as “signed under duress”, or “under protest”. These amendments are usually accompanied by alterations of the jurat itself (such as stricken language) or the Form 1040 (often in the wording of its headings or prompts for information), or by entries that do not provide the required information. Courts have not accepted Forms 1040 with alterations and jurat amendments as valid returns. Parkinson v. United States, 614 F. Supp. 105, 107 (S.D. Ohio 1985), affd. without published opinion 802 F.2d 459 (6th Cir. 1986); see Weller v. Commissioner, T.C. Memo. 1985-387; Counts v. Commissioner, T.C. Memo. 1984-561," }, { "docid": "5645467", "title": "", "text": "for the above stated year. I claim all my rights and waive none of them merely for exercising my right to work. I submit the 1040 form to prevent the further theft of my property and loss of my liberty. My signature on the form is not an admission of jurisdiction or submission to subject status; I ‘disclaim liability’ for any tax shown on the- form.” The Internal Revenue Service, seconded by the Tax Court, refused to accept the forms as “returns,” denied the Sloans the status of married filing joint return, and assessed additional taxes on them. To obtain “married filing joint return” status a taxpayer must submit a return that is “verified by a written declaration that it is made under the penalties of perjury.” 26 U.S.C. §§ 1, 6065. The question is whether the Sloans’ “Denial & Disclaimer” vitiated the jurat. Put differently, it is whether, if their return contained a deliberate and material false statement, the Sloans could be prosecuted for perjury. They could not if they had written under the jurat, “Just joking”; the return would be invalid and they would lose their married filing joint return status. It is a close question whether the “Denial & Disclaimer” should be interpreted in this light — that is, as an attempt to retract or qualify the jurat. It could be read just to mean that the Sloans reserve the right to renew their constitutional challenge to the federal income tax. But we think that the Internal Revenue Service should be entitled to construe alterations of the jurat against the taxpayer, at least when there is any doubt. The Sloans’ denial and disclaimer could be interpreted to deny that their signature has any more significance than the signature on a coerced confession. It would surely complicate the government’s task of proving perjury. The government receives tens of millions of tax returns and if taxpayers start embellishing the jurat the staggering task of processing all these returns may become entirely unmanageable. It is true that in Todd v. United States, 849 F.2d 365 (9th Cir.1988), the government conceded" }, { "docid": "10594377", "title": "", "text": "perforce rely on the self assessment of the taxpayer. The tax code therefore, includes §§ 6061 and 6065 which courts have interpreted to require execution of an unqualified jurat clause, the taxpayer’s assurance that the figures supplied are true to the best of his or her knowledge, and numbers sufficient to compute a tax. See Borgeson v. United States, 757 F.2d 1071 (10th Cir. 1985); United States v. Stillhammer, 706 F.2d 1072 (10th Cir. 1983); United States v. Porth, 426 F.2d 519 (10th Cir. 1970); Ted Kimball v. United States, 925 F.2d 356 (9th Cir. 1991); United States v. Moore, 627 F.2d 830 (7th Cir. 1980). Debtor’s addition to the jurat clause, although seemingly innocuous, forces the Internal Revenue Service to evaluate the jurat, under the tests imposed in the circuit concerned, to determine if the jurat has been qualified and is, therefore, defective and invalid. I agree with the Court of Appeals for the Seventh Circuit that the Internal Revenue Service should not be required to undertake this analysis. United States v. Moore, 627 F.2d 830, 835 (7th Cir. 1980). Such an effort comes at the expense of all other taxpayers who file in good faith and who do not alter the jurat. Bright line rules should be applied sparingly, but this situation requires just such a rule. I find that the jurat clause has been qualified if any addition or deletion is made to it. [M] Petitioner’s qualification to the jurat is styled a “DENIAL AND disclaimer”. The “Denial and Disclaimer” statement raises serious questions about whether petitioner is “denying” the accuracy of the information contained in the return, “disclaiming” the jurat altogether, or simply protesting the tax laws. Petitioner’s qualification is similar to those found in the quoted opinions. Like the qualifications found in those cases, it raises a significant question as to whether petitioner’s signatures under the jurat were declarations that the Forms 1040 “contain information on which the substantial correctness of the self-assessment may be judged”. Mosher v. Internal Revenue Service, 775 F.2d at 1294. The denial and disclaimer makes unclear whether petitioner had an" }, { "docid": "1159921", "title": "", "text": "which is frivolous. Mosher v. IRS, 775 F.2d 1292, 1294 (5th Cir.1985) (per curiam), cert. denied, 475 U.S. 1123, 106 S.Ct. 1645, 90 L.Ed.2d 189 (1986). Section 6065 provides that “any return ... required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that is made under the penalties of perjury.” A tax return that does not contain such a declaration does not contain information on which the substantial correctness of the self-assessment may be judged. Mosher, 775 F.2d at 1294; Borgeson v. United States, 757 F.2d 1071, 1073 (10th Cir.1985) (per curiam). Furthermore, “there is no conceivable legal foundation for striking the jurat.” Mosher, 775 F.2d at 1295; see also United States v. Lee, 455 U.S. 252, 260, 102 S.Ct. 1051, 1056-57, 71 L.Ed.2d 127 (1982) (the maintenance of a functional federal tax system is a sufficiently important governmental interest to justify incidental regulation upon first amendment rights). Moreover, section 6702 does not infringe upon a taxpayer’s first amendment rights because it penalizes only noncomphance with federal tax laws, not a taxpayer’s freedom of expression. Eicher v. United States, 774 F.2d 27, 29-30 (1st Cir.1985) (per curiam). Finding no error, we summarily affirm the decision of the District Court. See 8th Cir.R. 14. In addition, we agree with the government that this appeal is frivolous and entirely without merit and that sanctions therefore should be imposed. We impose on Hettig sanctions in the amount of $250 pursuant to Fed.R.App.P. 38. See Baskin v. United States, 738 F.2d 975, 977 (8th Cir.1984) (per curiam). . The Honorable Edward L. Filippine, United States District Judge for the Eastern District of Missouri." }, { "docid": "13974106", "title": "", "text": "Supreme Court held over fifty years ago that an unsworn tax return failed to satisfy the requirements of law. Lucas v. Pilliod Lumber Co., 281 U.S. 245, 50 S.Ct. 297, 74 L.Ed. 829 (1930). Moreover, the Internal Revenue Code requires that returns be verified under penalties of perjury and provides no exception to that rule. Code Sec. 6065. Thus, there is no conceivable legal foundation for striking the jurat and Mosher’s action in that regard must be viewed as frivolous as a matter of tax law. Since Mosher’s return did not contain information on which the substantial correctness of the self-assessment could be judged, and Mosher’s position was indeed frivolous, we conclude that the civil penalty was properly imposed. In conclusory terms Mosher seeks to justify his position by alleging violations of his right to a jury trial and other constitutional provisions, including the first, fourth, and fifth amendments. These contentions are meritless. Mosher was not denied a right to a jury trial since no genuine issue of fact remained that required a trial. Davis v. United States, 742 F.2d 171, 173 (5th Cir.1984). Mosher has not shown that the fourth amendment has any relevance whatsoever to these facts. Nor is noncompliance with the tax law protected by the first amendment. Borgeson, 757 F.2d at 1073; Franklet v. United States, 578 F.Supp. 1552, 1556 (N.D.Cal.1984), aff'd, 761 F.2d 529 (9th Cir.1985); United States v. Malinowski, 472 F.2d 850, 857 (3d Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). The statute is not unconstitutionally vágue as a person of ordinary common sense could understand the conduct that is prohibited or subject to penalty. See Arnett v. Kennedy, 416 U.S. 134, 159-63, 94 S.Ct. 1633, 1646-49, 40 L.Ed.2d 15 (1974). Ill As the income tax form is frivolous within the meaning of section 6702, the IRS lawfully assessed a $500.00 penalty. Accordingly, the district court properly granted summary judgment in favor of the government; the district court is therefore affirmed. AFFIRMED. . Section 6702 (effective September 3, 1982) provides: (a) Civil penalty. — If— (1) any individual" }, { "docid": "3719111", "title": "", "text": "Comm’r of Internal Revenue, 86 T.C. 383, 387, 1986 WL 22095 (1986). See White v. Comm’r of Internal Revenue, T.C. Summ. Op.2002-101, 2002 WL 1825387, at *3 (Aug. 5, 2002) (stating that the failure to attach a W-2 does not prevent the calculation of a taxpayer’s liability). The Court finds that the mere failure of the Debtor to attach his W-2s to his tax returns does not render the returns invalid or ineffective. Dynegy also contends that the Debtor’s Form 1040 does not constitute a valid tax return because the Debtor failed to sign it. Failure to sign a tax return under penalty of perjury renders a return invalid. See Payne, 431 F.3d at 1057; 26 U.S.C. § 6061(a) (any return, statement, or other document required to be made under the Internal Revenue Code must be signed in accordance with IRS forms and regulations). As discussed above, the Debtor testified that the mark on Form 1040 looked like no part of his admitted signature, though he thought that he had signed it. The Court agrees that the mark on the Debtor’s Form 1040 looks nothing like his signature on Form 1041 and the Court cannot determine whether such mark was made by the Debtor. As such, the Court finds that the Debtor has not “signed” the Form 1040. The Court notes that neither Dynegy nor the Debtor has cited any case law to aid the Court in its determination of this issue. The Court’s independent research likewise turned up nothing on point. However, many cases acknowledge the doctrine of incorporation by reference with respect to a tax return and hold that false information provided in a schedule which was integral to the return and attached but unsigned can be the basis of a criminal prosecution. See United States v. Adams, 314 Fed.Appx. 633, 639-40 (5th Cir.2009) (schedule which was not integral to the return could not be incorporated by reference into the return and, thus, could not be the basis of a criminal charge for submitting a false return); United States v. Damon, 676 F.2d 1060, 1063-64 (5th Cir.1982) (holding" }, { "docid": "4636317", "title": "", "text": "closed. Four months after closure of the case, debtor filed this complaint seeking to determine the dischargeability of the debts owed to the I.R.S. for all the tax years covered under the settlement in the judgment entered by the tax court. CONCLUSIONS OF LAW I.R.S. argues that it is entitled to summary judgment as a matter of law under these facts. It contends that under the law, debtor never filed a return, as determined by 26 U.S.C. § 6065, and therefore the debts are not dischargeable, pursuant to 11 U.S.C. § 523(a)(1)(B)(i). The I.R.S. argues that the statement added to the return qualified the jurat rendering it ineffective and, therefore, no return has been filed, pursuant to 26 U.S.C. § 6065, as interpreted by the Court of Appeals in Borgeson v. United States, 757 F.2d 1071 (10th Cir.1985). I agree with defendant’s argument. Our income tax system is voluntary and the Internal Revenue Service must perforce rely on the self assessment of the taxpayer. The tax code therefore, includes §§ 6061 and 6065 which courts have interpreted to require execution of an unqualified jurat clause, the taxpayer’s assurance that the figures supplied are true to the best of his or her knowledge, and numbers sufficient to compute a tax. See Borgeson v. United States, 757 F.2d 1071 (10th Cir.1985); United States v. Stillhammer, 706 F.2d 1072 (10th Cir.1983); United States v. Porth, 426 F.2d 519 (10th Cir.1970); Ted Kimball v. United States, 925 F.2d 356 (9th Cir.1991); United States v. Moore, 627 F.2d 830 (7th Cir.1980). Debtor’s addition to the jurat clause, although seemingly innocuous, forces the Internal Revenue Service to evaluate the ju-rat, under the tests imposed in the circuit concerned, to determine if the jurat has been qualified and is, therefore, defective and invalid. I agree with the Court of Appeals for the Seventh Circuit that the Internal Revenue Service should not be required to undertake this analysis. United States v. Moore, 627 F.2d 830, 835 (7th Cir.1980). Such an effort comes at the expense of all other taxpayers who file in good faith and who do not" }, { "docid": "4636318", "title": "", "text": "have interpreted to require execution of an unqualified jurat clause, the taxpayer’s assurance that the figures supplied are true to the best of his or her knowledge, and numbers sufficient to compute a tax. See Borgeson v. United States, 757 F.2d 1071 (10th Cir.1985); United States v. Stillhammer, 706 F.2d 1072 (10th Cir.1983); United States v. Porth, 426 F.2d 519 (10th Cir.1970); Ted Kimball v. United States, 925 F.2d 356 (9th Cir.1991); United States v. Moore, 627 F.2d 830 (7th Cir.1980). Debtor’s addition to the jurat clause, although seemingly innocuous, forces the Internal Revenue Service to evaluate the ju-rat, under the tests imposed in the circuit concerned, to determine if the jurat has been qualified and is, therefore, defective and invalid. I agree with the Court of Appeals for the Seventh Circuit that the Internal Revenue Service should not be required to undertake this analysis. United States v. Moore, 627 F.2d 830, 835 (7th Cir.1980). Such an effort comes at the expense of all other taxpayers who file in good faith and who do not alter the jurat. Bright line rules should be applied sparingly, but this situation requires just such a rule. I find that the jurat clause has been qualified if any addition or deletion is made to it. For the above reasons, I find that under the law, debtor qualified the jurat clause on the forms he filed with the I.R.S. making them ineffective as returns. Zellerbach Paper Co. v. Helvering, 293 U.S. 172, 180, 55 S.Ct. 127, 130, 79 L.Ed. 264 (1934); Borgeson v. U.S., 757 F.2d 1071 (10th Cir. 1985). Therefore, pursuant to 11 U.S.C. § 523(a)(1)(B)(i) the tax and associated interest owed by debtor for tax years 1979— 1985 is excepted from his discharge. Accordingly, defendant’s motion for summary judgment is granted and judgment will be entered in its favor." }, { "docid": "22576706", "title": "", "text": "return is therefore unlike those which contain blanket objections and no income figures at all. This is a difficult problem and one which we fortunately do not have to decide. The forms defendant supplied to the I.R.S. were not returns for another reason: they were not verified. 26 U.S.C. § 6001 states that “every person liable for any tax imposed by this title . . . shall . . . make such returns, and comply with such rules and regulations as the Secretary (of the Treasury) may from time to time prescribe.” Section 6011(a) requires taxpayers to make returns “according to the forms and regulations prescribed by the Secretary.” Section 6061 provides that returns “shall be signed in accordance with forms or regulations prescribed by the Secretary.” Section 6065 (section 6065(a) at the time defendant filed his returns) states that “any return . . . required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury.” In 26 C.F.R. § 1.6065-l(a) the Secretary of the Treasury has by regulation also required income taxpayers to verify their returns. Defendant had a duty by statute and regulation to file tax returns with a verified signature. The forms he submitted to the 1. R.S. were not returns because the declaration that the forms were completed and signed under penalty of perjury was obliterated. Cupp v. Commissioner, 65 T.C. 68, 78-79 (1975), aff’d unpub. mem., (3d Cir. June 10, 1977); Ellison v. Commissioner, 35 T.C.M. 1261, 1263 (CCH) (1976), aff’d unpub. mem., (10th Cir. Jan. 20, 1978). See Commissioner v. The Pilliod Lumber Co., 281 U.S. 245, 248, 50 S.Ct. 297, 299, 74 L.Ed. 829 (1930) (corporate return); Burford v. Commissioner, 153 F.2d 745, 746 (5th Cir. 1946) (corporate return); UHL Estate Co. v. Commissioner, 116 F.2d 403, 404 (9th Cir. 1940) (corporate return). Even if the forms had been verified, the I.R.S. could have properly rejected them as insufficient returns. The tax protestor cases have forced courts to grapple with the definition" }, { "docid": "10594372", "title": "", "text": "from time to time prescribe.” A return must state the specific amounts of gross income, deductions, and credits claimed. Thompson v. Commissioner, supra at 562; Sanders v. Commissioner, 21 T.C. 1012, 1018 (1954), affd. 225 F.2d 629 (10th Cir. 1955). “In our self-reporting tax system the government should not be forced to accept as a return a document which plainly is not intended to give the required information.” United States v. Moore, 627 F.2d 830, 835 (7th Cir. 1980); McCaskill v. Commissioner, 77 T.C. 689, 698-699 (1981). For example, “protest returns”, on which taxpayers make blanket objections (under the guise of constitutional protections) without providing any of the required information, are generally not considered to be returns. Thompson v. Commissioner, supra at 562. Section 6011(a) requires taxpayers to make returns “according to the forms and regulations prescribed by the Secretary.” Section 6065 states that “any return * * * required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that it is made under the penalties of perjury.” See also sec. 1.6065-l(a), Income Tax Regs. Section 6061 provides that returns “shall be signed in accordance with forms or regulations prescribed by the Secretary.” To facilitate compliance with these requirements, the Form 1040 “prescribed by the Secretary” includes a standard preprinted jurat, which states: Under penalties of perjury, I declare that I have examined this return, including accompanying schedules and statements, and to the best of my knowledge and belief, it is true, correct, and complete. Declaration of preparer (other than taxpayer) is based on all information of which preparer has any knowledge[ ] Immediately under this clause is a place for a taxpayer and spouse to sign and date the return. Where the taxpayer strikes or obliterates the jurat, the Form 1040, even if otherwise complete, accurate, and signed, does not constitute a return. United States v. Moore, supra at 834; Cupp v. Commissioner, 65 T.C. 68, 78-79 (1975), affd. without published opinion 559 F.2d 1207 (3d Cir. 1977). A tax return without the jurat “does not" }, { "docid": "12808680", "title": "", "text": "S.Ct. at 1055, the Court determined that not all burdens on religion are unconstitutional, id., and that because “the broad public interest in maintaining a sound tax system is of such high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.” Id. at 260, 102 S.Ct. at 1057. As relevant to these cases, the requirement that the tax return be signed under penalty of perjury is not an unconstitutional restriction on defendants’ rights to freedom of religion, Borgeson v. United States, 757 F.2d 1071, 1073 (10th Cir.1985), or free speech, Mosher v. IRS, 775 F.2d 1292, 1294-95 (5th Cir.1985) (citing Borgeson), cert. denied, 475 U.S. 1123, 106 S.Ct. 1645, 90 L.Ed.2d 189 (1986); Hettig v. United States, 845 F.2d 794, 795 (8th Cir.1988) (citing Mosher and Borgeson). Defendants’ other major argument was that the United States District Court for the District of Kansas lacked jurisdiction over the charged offenses. This too is without merit. Under 18 U.S.C. § 3231, federal district courts have exclusive jurisdiction over “all offenses against the United States,” including those crimes defined in Title 26 of the United States Code. United States v. Tedder, 787 F.2d at 542; United States v. Studley, 783 F.2d 934, 937 (9th Cir.1986); United States v. Latham, 754 F.2d 747, 749 (7th Cir.1985); United States v, Spurgeon, 671 F.2d 1198, 1199 (8th Cir.1982). The Internal Revenue Code was validly enacted by Congress and is fully enforceable, United States v. Studley, 783 F.2d at 940; see also, Wheeler v. United States, 744 F.2d 292, 293 (2d Cir.1984). Venue is proper in the district of taxpayers’ residence. United States v. Garman, 748 F.2d 218, 220 (4th Cir.1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1361, 84 L.Ed.2d 382 (1985); United States v. Grabinski, 727 F.2d 681, 684 (8th Cir.1984); United States v. Rice, 659 F.2d 524, 526 (5th Cir.1981). See also 26 U.S.C. § 6091(b)(1)(A)(i). Defendants also claim that the charges should have been brought by indictment rather than information because failure to file tax returns is an infamous crime. The answer to this argument" }, { "docid": "3742289", "title": "", "text": "that they would elect to file their 1988 return as “married filing jointly” does not convert the ad- mimstrative substitute return into a return which meets the requirements of the Internal Revenue Code and Regulations. See Cross, 1991 WL 281710, 1991 Bankr. Lexis 830. As noted by the court in Rank, 161 B.R. at 409, Internal Revenue Code section 6020 which gives the Internal Revenue Service the authority to prepare a substitute for return, does not supplant the taxpayer’s obligation to file nor relieve the taxpayer from criminal liability for failing to file. The creation of a Substitute for Return is purely administrative, permitting the assessment and collection processes to commence ... Since the Substitute for Return generally contains only basic demographic information about the taxpayer, it does not contain sufficient information to qualify the return as a “tax return” under the Internal Revenue Code. Rank, at 409. Although debtors may have signed a statement referring to their 1988 taxes, that signature does not constitute an attestment under penalty of perjury of the particular information required to be disclosed on a tax return. A document is a return only if “it purports to be a return, is sworn to as such, ... and evinces an honest and genuine endeavor to satisfy the law.” Cross, 1991 WL 281710, at *1, 1991 Bankr.Lexis 830, at 3 (quoting Zellerbach Paper Co. v. Helvering, 293 U.S. 172, 55 S.Ct. 127, 79 L.Ed. 264 (1938)). Accordingly, the signature of the debtors on a separate document referring to their 1988 taxes does not transform a substitute for return prepared by the Internal Revenue Service into a properly signed and filed federal income tax return. See Cross, 1991 WL 281710, 1991 Bankr.Lexis 830. Since the debtors failed to file a federal income tax return for the 1988 taxable year, the 1988 taxes, as well as the penalties and interest, are nondischargeable in this • bankruptcy case. See In re Oldfield, 121 B.R. 249, 253 (Bankr.E.D.Ark.1990); see also In re Hanna, 872 F.2d 829, 830-31 (8th Cir.1989). ORDERED as follows: 1. The United States Motion for Summary Judgment," }, { "docid": "10594376", "title": "", "text": "tax liability is self-reported. A declaration under penalty of perjury is necessary to assure the correctness of the return information. Any alteration of the jurat throws into question the correctness of the return information and impedes the administration of the federal income tax laws. [Id. at 107; emphasis added.] The court concluded that the taxpayer had not filed a return “verified by a declaration under penalty of perjury.” Id. In the bankruptcy case of Schmitt u. United States, 140 Bankr. 571, 572 (W.D. Okla. 1992), the debtor qualified the jurat on his Forms 1040 with the following added language: “‘SIGNED UNDER DURESS, SEE STATEMENT ATTACHED.’” The attached statement read: “This return is signed under duress. I do not concede that my wages are taxable income under the law, however, I am acquiescing to the power of the State and I am filing this Return per the instructions of the I.R.S.” The bankruptcy judge held that the Forms 1040 did not constitute returns, stating: Our income tax system is voluntary and the Internal Revenue Service must perforce rely on the self assessment of the taxpayer. The tax code therefore, includes §§ 6061 and 6065 which courts have interpreted to require execution of an unqualified jurat clause, the taxpayer’s assurance that the figures supplied are true to the best of his or her knowledge, and numbers sufficient to compute a tax. See Borgeson v. United States, 757 F.2d 1071 (10th Cir. 1985); United States v. Stillhammer, 706 F.2d 1072 (10th Cir. 1983); United States v. Porth, 426 F.2d 519 (10th Cir. 1970); Ted Kimball v. United States, 925 F.2d 356 (9th Cir. 1991); United States v. Moore, 627 F.2d 830 (7th Cir. 1980). Debtor’s addition to the jurat clause, although seemingly innocuous, forces the Internal Revenue Service to evaluate the jurat, under the tests imposed in the circuit concerned, to determine if the jurat has been qualified and is, therefore, defective and invalid. I agree with the Court of Appeals for the Seventh Circuit that the Internal Revenue Service should not be required to undertake this analysis. United States v. Moore, 627" }, { "docid": "22576707", "title": "", "text": "of perjury.” In 26 C.F.R. § 1.6065-l(a) the Secretary of the Treasury has by regulation also required income taxpayers to verify their returns. Defendant had a duty by statute and regulation to file tax returns with a verified signature. The forms he submitted to the 1. R.S. were not returns because the declaration that the forms were completed and signed under penalty of perjury was obliterated. Cupp v. Commissioner, 65 T.C. 68, 78-79 (1975), aff’d unpub. mem., (3d Cir. June 10, 1977); Ellison v. Commissioner, 35 T.C.M. 1261, 1263 (CCH) (1976), aff’d unpub. mem., (10th Cir. Jan. 20, 1978). See Commissioner v. The Pilliod Lumber Co., 281 U.S. 245, 248, 50 S.Ct. 297, 299, 74 L.Ed. 829 (1930) (corporate return); Burford v. Commissioner, 153 F.2d 745, 746 (5th Cir. 1946) (corporate return); UHL Estate Co. v. Commissioner, 116 F.2d 403, 404 (9th Cir. 1940) (corporate return). Even if the forms had been verified, the I.R.S. could have properly rejected them as insufficient returns. The tax protestor cases have forced courts to grapple with the definition of a “return.” The tax code and regulations provide little guidance. In United States v. Porth, supra, at 523, the Tenth Circuit held that a return “which does not contain any information relating to the taxpayer’s income from which the tax can be computed is not a return within the meaning of the Internal Revenue Code.” The return in Porth had no information at all on income. The Porth test has been adopted by almost all courts, including this one. United States v. Stout, 601 F.2d 325, 328 (7th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 481, 62 L.Ed.2d 406 (1979); United States v. Jordan, 508 F.2d 750, 751-52 (7th Cir.), cert. denied, 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 62 (1975). It is not clear, however, what the result should be when the form does include some income figures, even if incomplete or inaccurate. Varying positions have been taken by the Courts of Appeals. The Tenth Circuit has held that a form giving some small income amounts in “constitutional” dollars was tantamount" }, { "docid": "13974103", "title": "", "text": "Ernst, Inc. v. General Motors Corp., 537 F.2d 105, 108 (5th Cir.1976)). Mosher does not dispute that he is required to file an income tax return. The parties agree that a 1982 tax return was filled out except that the language including “under penalty of perjury” above Mosher’s signature was crossed out. The government contends, however, that by striking the jurat and thus failing to sign the return under penalty of perjury, Mosh-er was properly assessed a civil penalty under the frivolous return provisions of 26 U.S.C. § 6702. Under 26 U.S.C. § 6702, the IRS may impose a $500 penalty on any individual who files “what purports to be” a tax return when such return (1) does not contain information on which the substantial correctness of the self-assessment may be judged, and (2) is based on a frivolous position. Anderson v. United States, 754 F.2d 1270, 1271 (5th Cir.1985). Other provisions of the tax code indicate that a taxpayer is prohibited from altering a jurat on a return. See 26 U.S.C. §§ 6061 and 6065. Section 6061 provides that “any return, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall be signed in accordance with forms or regulations prescribed by the Secretary.” Similarly, section 6065 provides that “any return, declaration, statement, or other document required to be made under any provision of the internal revenue laws or regulations shall contain or be verified by a written declaration that is made under the penalties of perjury.” Although this Court has not yet interpreted section 6702 in the context of this specific conduct, Mosher’s conduct appears to fall directly within the prohibitions of the statute. First, by crossing out the jurat, Mosher refused to certify that the entries on the form were correct. Without this certification, the IRS could not properly process the return or assess the substantial correctness of his self-assessment. The Tenth Circuit, in addressing this identical issue, held that an income tax return which is not signed under penalties of perjury is invalid and cannot be processed by" } ]

[ { "docid": "22741964", "title": "", "text": "power, as did the Board before it, to conduct an immediate hearing at which petitioner can preserve his evidence. 18 U. S. C. § 4214 (b) (2) (1976 ed.); 28 CFR §2.47 (1976). Petitioner also argues that the pending warrant and detainer adversely affect his prison classification and qualification for institutional programs. We have rejected the notion that every state action carrying adverse consequences for prison inmates automatically activates a due process right. In Meachum v. Fano, 427 U. S. 215 (1976), for example, no due process protections were required upon the discretionary transfer of state prisoners to a substantially less agreeable prison, even where that transfer visited a “grievous loss” upon the inmate. The same is true of prisoner classification and eligibility for rehabilitative programs in the federal system. Congress has given federal prison officials full discretion to control these conditions of confinement, 18 U. S. C. § 4081, and petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process. Mr. Justice Stevens, with whom Mr. Justice Brennan joins, dissenting. The Court holds that the lodging of a detainer with an institution in which a parolee is confined does not have the kind of impact on his custodial status that requires a due process hearing. That holding does not answer the question which I regard as critical in this case. For it is clear that sooner or later a parole revocation hearing will be held; the question is whether the timing of that hearing is an element of the procedural fairness to which the parolee is constitutionally entitled. I am persuaded that it is. 1 start from the premise that parole revocation is a deprivation of liberty within the meaning of the Fifth and Fourteenth Amendments and therefore must be preceded by due process. The Court so held in Morrissey v. Brewer, 408 U. S. 471, 481-483. In that case the revocation resulted in the return of the parolee to prison whereas in this case the parolee is already incarcerated for a separate offense. But in both situations the revocation affects the length of his confinement" } ]

[ { "docid": "1136477", "title": "", "text": "discretion to reassign a prisoner. We intially note that the Supreme Court has recognized “that prison officials have broad administrative and discretionary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests.” Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). “Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). “Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States,” Hewitt, 459 U.S. at 466, 103 S.Ct. at 868, but “to hold ... that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” Id. (emphasis original) (quoting Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)). Thus, the Supreme Court has: “consistently refused to recognize more than the most basic liberty interests in prisoners. ‘Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Thus, there is no ‘constitutional or inherent right’ to parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), and ‘the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison,’ Wolff v. McDonnell, supra, 418 U.S. [539], at 557, 94 S.Ct. [2963], at 2975 [41 L.Ed.2d 935 (1974) ], despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v. Fano, supra, 427 U.S., at 225, 96 S.Ct., at 2538, the" }, { "docid": "19651942", "title": "", "text": "were ordered in the aftermath of arson incidents for which the transferred inmates were thought to be responsible, and did not entail a loss of good time credits or any period of disciplinary confinement. Id., at 222. The Court began with the proposition that the Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner. Id., at 224. It then held that the Due Process Clause did not itself create a liberty interest in prisoners to be free from intrastate prison transfers. Id., at 225. It reasoned that transfer to a maximum security facility, albeit one with more burdensome conditions, was “within the normal limits or range of custody which the conviction has authorized the State to impose.” Ibid.; see also Montanye v. Haymes, 427 U. S. 236, 242 (1976). The Court distinguished Wo Iff by noting that there the protected liberty interest in good time credit had been created by state law; here no comparable Massachusetts law stripped officials of the discretion to transfer prisoners to alternative facilities “for whatever reason or for no reason at all.” Meachum, supra, at 228. Shortly after Meachum, the Court embarked on a different approach to defining state-created liberty interests. Because dictum in Meachum distinguished Wolff by focusing on whether state action was mandatory or discretionary, the Court in later cases laid ever greater emphasis on this somewhat mechanical dichotomy. Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1 (1979), foreshadowed the methodology that would come to full fruition in Hewitt v. Helms, 459 U. S. 460 (1983). The Greenholtz inmates alleged that they had been unconstitutionally denied parole. Their claim centered on a state statute that set the date for discretionary parole at the time the minimum term of imprisonment less good time credits expired. The statute ordered release of a prisoner at that time, unless one of four specific conditions were shown. 442 U. S., at 11. The Court apparently accepted the inmates’ argument that the word “shall” in the statute created a legitimate expectation of" }, { "docid": "22673311", "title": "", "text": "involve release from institutional life altogether, which is a far more significant change in a prisoner’s freedoms than that at issue here, yet in Greenholtz and Wolff we held that neither situation involved an interest independently protected by the Due Process Clause. These decisions compel an identical result here. Despite this, respondent points out that the Court has held that a State may create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures. Thus, in Wolff, where we rejected any notion of an interest in good-time credits inherent in the Constitution, we also found that Nebraska had created a right to such credits. 418 U. S., at 556-557. See also Greenholtz v. Nebraska Penal Inmates, supra (parole); Vitek v. Jones, supra (transfer to mental institution). Likewise, and more relevant here, was our summary affirmance in Wright v. Enomoto, 462 F. Supp. 397 (ND Cal. 1976), summarily aff’d, 434 U. S. 1052 (1978), where the District Court had concluded that state law created a liberty interest in confinement to any sort of segregated housing within a prison. Hughes v. Rowe, 449 U. S. 5 (1980) (per curiam), while involving facts similar to these in some respects, was essentially a pleading case rather than an exposition of the substantive constitutional issues involved. Respondent argues that Pennsylvania, in its enactment of regulations governing the administration of state prisons, has created a liberty interest in remaining free from the restraints accompanying confinement in administrative segregation. Except to the extent that our summary affirmance in Wright v. Enomoto, supra, may be to the contrary, we have never held that statutes and regulations governing daily operation of a prison system conferred any liberty interest in and of themselves. Meachum v. Fano, 427 U. S. 215 (1976), and Montanye v. Haymes, supra, held to the contrary; in Wolff, supra, we were dealing with good-time credits which would have actually reduced the period of time which the inmate would have been in the custody of the government; in Greenholtz, supra, we dealt with parole, which would likewise have radically" }, { "docid": "22692066", "title": "", "text": "adequate hearing. We agree with the District Court in both respects. A We have repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment. There is no “constitutional or inherent right” to parole, Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 7 (1979), but once a State grants a prisoner the conditional liberty properly dependent on the observance of special parole restrictions, due process protections attach to the decision to revoke parole. Morrissey v. Brewer, 408 U. S. 471 (1972). The same is true of the revocation of probation. Gagnon v. Scarpelli, 411 U. S. 778 (1973). In Wolff v. McDonnell, 418 U. S. 539 (1974), we held that a state-created right to good-time credits, which could be forfeited only for serious misbehavior, constituted a liberty interest protected by the Due Process Clause. We also noted that the same reasoning could justify extension of due process protections to a decision to impose “solitary” confinement because “[it] represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct.” Id., at 571-572, n. 19. Once a State has granted prisoners a liberty interest, we held that due process protections are necessary “to insure that the state-created right is not arbitrarily abrogated.” Id., at 557. In Meachum v. Fano, 427 U. S. 215 (1976), and Montanye v. Haymes, 427 U. S. 236 (1976), we held that the transfer of a prisoner from one prison to another does not infringe a protected liberty interest. But in those cases transfers were discretionary with the prison authorities, and in neither case did the prisoner possess any right or justifiable expectation that he would not be transferred except for misbehavior or upon the occurrence of other specified events. Hence, “the predicate for invoking the protection of the Fourteenth Amendment as construed and applied in Wolff v. McDonnell [was] totally nonexistent.” Meachum v. Fano, supra, at 226-227. Following Meachum v. Fano and Montanye v." }, { "docid": "6999861", "title": "", "text": "first matter to be resolved is whether we are to look for such an interest in the fourteenth amendment itself or in the various sources of state law. When a prisoner is still under confinement, the Supreme Court has consistently held that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983) (quoting Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976)). Thus, for prisoners under confinement, the Court has generally failed to find a liberty interest deriving independently from the Constitution. An independent liberty interest was not found for prisoners under confinement even in cases concerning parole and good time credits. See Hewitt, 459 U.S. at 467-68, 103 S.Ct. at 869 (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979) and Wolff v. McDonnell, 418 U.S. at 557, 94 S.Ct. at 2975). On the other hand, the Court has found independent constitutional liberty interests where total release from institutional life has been revoked, as in the case of a parolee, or where the restrictions imposed go beyond the original conditions of confinement. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (independent constitutional due process protection in case of revocation of parole); Vitek v. Jones, 445 U.S. 480, 491-94, 100 S.Ct. 1254, 1262-64, 63 L.Ed.2d 552 (1980) (independent due process protection in involuntary transfer to mental hospital). An inmate in a halfway house is granted a measure of liberty that lies between that of a parolee and that of an inmate incarcerated in prison. While the prisoner in this situation enjoys some significant liberty, he remains under confinement in a correctional institution. His position is, therefore, not like that of a parolee. See, e.g., Whitehorn v." }, { "docid": "23110054", "title": "", "text": "49 L.Ed.2d 451 (1976). Plaintiffs claim a liberty interest in freedom from transfer to administrative segregation. It is clear that the due process clause of the Constitution does not, of itself, make a state prisoner’s freedom from transfer to administrative segregation a protected liberty interest. As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). See also Walker v. Hughes, supra, 558 F.2d at 1252. A protected liberty entitlement can also be created by state law, however. When a liberty interest has been created, the due process clause acts to insure that the state-created right is not arbitrarily abrogated. Meachum v. Fano, supra, 427 U.S. at 226, 96 S.Ct. at 2539. Wolff v. McDonnell, supra, 418 U.S. at 557, 94 S.Ct. at 2975. See Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980). Liberty interests can be created by state rules or mutually explicit understandings as well as by statute. In the area of liberty entitlements claimed by prison inmates, this Court has explicitly ruled that liberty interests can be created by policy statements and other promulgations by prison officials. Walker v. Hughes, supra, 558 F.2d at 1255. Consequently, this Court must determine whether state statutes, mutually explicit understandings, or rules, including prison policy statements or other promulgations, created for plaintiffs a liberty entitlement or expectation that they would not be transferred to administrative segregation except upon the occurrence of specific events. E. g., Wolff v. McDonnell, supra, 418 U.S. at 557, 94 S.Ct. at 2975 (state-created right to “good time” credit by statute which specified that it would only be forfeited based on serious misbehavior); Mon-ta nye v. Haymes, supra, and Meachum v. Fano, supra (inmates had no due process rights to a hearing prior to transfer to another state" }, { "docid": "22673330", "title": "", "text": "that prison officials permit the submission of any additional evidence or statements. The decision whether a prisoner remains a security risk will be based on facts relating to a particular prisoner — which will have been ascertained when determining to confine the inmate to administrative segregation — and on the officials’ general knowledge of prison conditions and tensions, which are singularly unsuited for “proof” in any highly structured manner. Likewise, the decision to continue confinement of an inmate pending investigation of misconduct charges depends upon circumstances that prison officials will be well aware of — most typically, the progress of the investigation. In both situations, the ongoing task of operating the institution will require the prison officials to consider a wide range of administrative considerations; here, for example, petitioners had to consider prison tensions in the aftermath of the De cember 3 riot, the ongoing state criminal investigation, and so forth. The record plainly shows that on January 2 a Program Review Committee considered whether Helms’ confinement should be continued, App. 13a-15a. This review, occurring less than a month after the initial decision to confine Helms to administrative segregation, is sufficient to dispel any notions that the confinement was a pretext. Justice Blackmun, concurring in part and dissenting in part. The Court’s prior cases of course recognize that a valid criminal conviction and sentence extinguish a defendant’s otherwise protected right to be free from confinement. E. g., Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 464 (1981); Vitek v. Jones, 445 U. S. 480, 493 (1980); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 7 (1979); Meachum v. Fano, 427 U. S. 215, 224 (1976). Although prison inmates retain a residuum of liberty, see Wolff v. McDonnell, 418 U. S. 539, 555-556 (1974), this liberty is not infringed by conditions of confinement that are “within the normal limits or range of custody which the conviction has authorized the State to impose.” Meachum v. Fano, 427 U. S., at 225; see Montanye v. Haymes, 427 U. S. 236, 242 (1976); Vitek v. Jones, 445 U. S., at 493." }, { "docid": "22692074", "title": "", "text": "to the Lincoln Regional Center has some stigmatizing consequences, and the fact that additional mandatory behavior modification systems are used at the Lincoln Regional Center combine to make the transfer a 'major change in the conditions of confinement’ amounting to a 'grievous loss’ to the inmate.” Miller v. Vitek, 437 F. Supp., at 573. Were an ordinary citizen to be subjected involuntarily to these consequences, it is undeniable that protected liberty interests would be unconstitutionally infringed absent compliance with the procedures required by the Due Process Clause. We conclude that a convicted felon also is entitled to the benefit of procedures appropriate in the circumstances before he is found to have a mental disease and transferred to a mental hospital. Undoubtedly, a valid criminal conviction and prison sentence extinguish a defendant’s right to freedom from confinement. Greenholtz v. Nebraska Penal Inmates, 442 U. S., at 7. Such a conviction and sentence sufficiently extinguish a defendant’s liberty “to empower the State to confine him in any of its prisons.” Meachum v. Fano, 427 U. S., at 224 (emphasis deleted). It is also true that changes in the conditions of confinement having a substantial adverse impact on the prisoner are not alone sufficient to invoke the protections of the Due Process Clause “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him.” Montanye v. Haymes, 427 U. S., at 242. Appellants maintain that the transfer of a prisoner to a mental hospital is within the range of confinement justified by imposition of a prison sentence, at least after certification by a qualified person that a prisoner suffers from a mental disease or defect. We cannot agree. None of our decisions holds that conviction for a crime entitles a State not only to confine the convicted person but also to determine that he has a mental illness and to subject him involuntarily to institutional care in a mental hospital. Such consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by a person convicted of crime. Our cases" }, { "docid": "9841773", "title": "", "text": "have concluded that “to hold ... that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” Meachum v. Fano, [427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (emphasis in original)]. As to the second point, our decisions have consistently refused to recognize more than the most basic liberty interest in prisoners. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 [68 S.Ct. 1049, 1060, 92 L.Ed. 1356] (1948). Thus, there is no “constitutional or inherent right” to parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 [99 S.Ct. 2100, 2104, 60 L.Ed.2d 668] (1979), and “the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison,” Wolff v. McDonnell, [418 U.S. at 557, 94 S.Ct. at 2975], despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v. Fano, [427 U.S. at 225, 96 S.Ct. at 2538], the transfer of a prisoner from one institution to another was found unprotected by “the Due Process Clause in and of itself,” even though the change of facilities involved a significant modification in conditions of confinement, later characterized by the Court as a “grievous loss.” Moody v. Daggett, 429 U.S. 78, 88 n. 9 [97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236] (1976). As we have held previously, these decisions require that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242 [96 S.Ct. 2543, 2547, 49 L.Ed.2d 466] (1976). See also Vitek v. Jones, 445 U.S. 480, 493" }, { "docid": "1136479", "title": "", "text": "transfer of a prisoner from one institution to another was found unprotected by ‘the Due Process Clause in an of itself,’ even though the change of facilities involved a significant modification in conditions of confinement, later characterized by the Court as a ‘grievous loss.’ Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976). As we have held previously, these decisions require that ‘[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.’ Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). See also Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552 (1980).” Hewitt, 459 U.S. at 467-68, 103 S.Ct. at 869-70. Thus, “it is plain that the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence,” and thus does not implicate a prisoner’s liberty interest under the Due Process Clause. Hewitt, 459 U.S. at 468, 103 S.Ct. at 869. Thus, Mathews could not and in fact does not contend that a nonpunitive assignment to maximum security implicates a liberty interest under the Due Process Clause. Instead, Mathews urges that A.R. 802 “limits the discretion of prison officials to reassign an inmate once the inmate has been permanently assigned. By so limiting the discretion of prison authorities, A.R. 802 creates a proteetible liberty interest.” In Hewitt v. Helms, the Supreme Court examined Pennsylvania’s statutes and regulations governing the transfer of an inmate from the general prison population to administrative segregation. The Court noted that Pennsylvania “used language of an unmistakenly mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed ... and that administrative segregation will not occur absent specified substantive predicates — viz., ‘the need for the control,’ or ‘the" }, { "docid": "22673309", "title": "", "text": "of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285 (1948). Thus, there is no “constitutional or inherent right” to parole, Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 7 (1979), and “the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison,” Wolff v. McDonnell, supra, at 557, despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v. Fano, supra, at 225, the transfer of a prisoner from one institution to another was found unprotected by “the Due Process Clause in and of itself,” even though the change of facilities involved a significant modification in conditions of confinement, later characterized by the Court as a “grievous loss.” Moody v. Daggett, 429 U. S. 78, 88, n. 9 (1976). As we have held previously, these decisions require that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U. S. 236, 242 (1976). See also Vitek v. Jones, 445 U. S. 480, 493 (1980). It is plain that the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence. The phrase “administrative segregation,” as used by the state authorities here, appears to be something of a catchall: it may be used to protect the prisoner’s safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later classification or transfer. See 37 Pa. Code §§95.104 and 95.106 (1978), and n. 1, supra. Accordingly, administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration. This conclusion finds ample support in our decisions regarding parole and good-time credits. Both these subjects" }, { "docid": "22673308", "title": "", "text": "restraints on his freedom, we think his argument seeks to draw from the Due Process Clause more than it can provide. We have repeatedly said both that prison officials have broad administrative and discretionary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests. As to the first point, we have recognized that broad discretionary authority is necessary because the administration of a prison is “at best an extraordinarily difficult undertaking,” Wolff v. McDonnell, supra, at 566, and have concluded that “to hold . . . that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” Meachum v. Fano, supra, at 225. As to the second point, our decisions have consistently refused to recognize more than the most basic liberty interests in prisoners. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285 (1948). Thus, there is no “constitutional or inherent right” to parole, Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 7 (1979), and “the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison,” Wolff v. McDonnell, supra, at 557, despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v. Fano, supra, at 225, the transfer of a prisoner from one institution to another was found unprotected by “the Due Process Clause in and of itself,” even though the change of facilities involved a significant modification in conditions of confinement, later characterized by the Court as a “grievous loss.” Moody v. Daggett, 429 U. S. 78, 88, n. 9 (1976). As we have held previously, these decisions require that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is" }, { "docid": "1039937", "title": "", "text": "has consistently refused to recognize liberty interests arising from the Constitution itself in situations involving the alteration of a more conditional right or status afforded a lawfully confined prisoner. The Court’s recent decisions emphasize that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the constitution, the Due Process Clause does not in and of itself subject an inmate’s treatment by prison authorities to judicial oversight”. Montanye v. Haymes, 1976, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466; see also, e.g., Hewitt v. Helms, 1983, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675. Accordingly, the Court has found no constitutionally based liberty interest in the involuntary transfer of a prisoner to a different prison facility, Olim v. Wakinekona, 1983, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813; Montanye v. Haymes, 1976, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466; in the transfer of a prisoner from the general prison population to administrative confinement, Hewitt v. Helms, 1983, 459 U.S. 460,103 S.Ct. 864, 74 L.Ed.2d 675; in the transfer of a prisoner from a less restrictive facility to a more restrictive facility, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451, reh’g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155; or in the initial determination whether discretionary parole-release should be granted a prisoner, Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 1979, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668. The liberty afforded a prisoner in a work release program falls somewhere in between the less restricted liberties enjoyed by a parolee or probationer and the more restricted status conferred upon prisoners incarcerated within the general prison population. Whitehorn asserts that his loss of work-release status — a status which enables the prisoner to leave the general prison population and allows him some of the same liberties enjoyed by parolees and probationers — is a loss so grievous as to trigger a right to due process protections" }, { "docid": "22538096", "title": "", "text": "contended, in light of our prior cases — that an inmate’s interest in unfettered visitation is guaranteed directly by the Due Process Clause. We have rejected the notion that “any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause.” (Emphasis in original.) Meachum v. Fano, 427 U. S. 215, 224 (1976). This is not to say that a valid conviction extinguishes every direct due process protection; “consequences visited on the prisoner that are qualitatively different from the punishment characteristically suffered by a person convicted of crime” may invoke the protections of the Due Process Clause even in the absence of a state-created right. Vitek v. Jones, 445 U. S. 480, 493 (1980) (transfer to mental hospital). However, “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.\" Montanye v. Haymes, 427 U. S. 236, 242 (1976). The denial of prison access to a particular visitor “is well within the terms of confinement ordinarily contemplated by a prison sentence,” Hewitt v. Helms, 459 U. S., at 468, and therefore is not independently protected by the Due Process Clause. We have held, however, that state law may create enforceable liberty interests in the prison setting. We have found, for example, that certain regulations granted inmates a protected interest in parole, Board of Pardons v. Allen, 482 U. S. 369 (1987); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979), in good-time credits, Wolff v. McDonnell, 418 U. S., at 556-572, in freedom from involuntary transfer to a mental hospital, Vitek v. Jones, 445 U. S., at 487-494, and in freedom from more restrictive forms of confinement within the prison, Hewitt v. Helms, supra. In contrast, we have found that certain state statutes and regulations did not create a protected liberty interest in transfer to another prison." }, { "docid": "22538097", "title": "", "text": "treatment by prison authorities to judicial oversight.\" Montanye v. Haymes, 427 U. S. 236, 242 (1976). The denial of prison access to a particular visitor “is well within the terms of confinement ordinarily contemplated by a prison sentence,” Hewitt v. Helms, 459 U. S., at 468, and therefore is not independently protected by the Due Process Clause. We have held, however, that state law may create enforceable liberty interests in the prison setting. We have found, for example, that certain regulations granted inmates a protected interest in parole, Board of Pardons v. Allen, 482 U. S. 369 (1987); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979), in good-time credits, Wolff v. McDonnell, 418 U. S., at 556-572, in freedom from involuntary transfer to a mental hospital, Vitek v. Jones, 445 U. S., at 487-494, and in freedom from more restrictive forms of confinement within the prison, Hewitt v. Helms, supra. In contrast, we have found that certain state statutes and regulations did not create a protected liberty interest in transfer to another prison. Meachum v. Fano, 427 U. S., at 225 (intrastate transfer); Olim v. Wakinekona, supra (interstate transfer). The fact that certain state-created liberty interests have been found to be entitled to due process protection, while others have not, is not the result of this Court’s judgment as to what interests are more significant than others; rather, our method of inquiry in these cases always has been to examine closely the language of the relevant statutes and regulations. Stated simply, “a State creates a protected liberty interest by placing substantive limitations on official discretion.” Olim v. Wakinekona, 461 U. S., at 249. A State may do this in a number of ways. Neither the drafting of regulations nor their interpretation can be reduced to an exact science. Our past decisions suggest, however, that the most common manner in which a State creates a liberty interest is by establishing “substantive predicates” to govern official decision-making, Hewitt v. Helms, 459 U. S., at 472, and, further, by mandating the outcome to be reached upon a finding that the relevant" }, { "docid": "22673310", "title": "", "text": "not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U. S. 236, 242 (1976). See also Vitek v. Jones, 445 U. S. 480, 493 (1980). It is plain that the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence. The phrase “administrative segregation,” as used by the state authorities here, appears to be something of a catchall: it may be used to protect the prisoner’s safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later classification or transfer. See 37 Pa. Code §§95.104 and 95.106 (1978), and n. 1, supra. Accordingly, administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration. This conclusion finds ample support in our decisions regarding parole and good-time credits. Both these subjects involve release from institutional life altogether, which is a far more significant change in a prisoner’s freedoms than that at issue here, yet in Greenholtz and Wolff we held that neither situation involved an interest independently protected by the Due Process Clause. These decisions compel an identical result here. Despite this, respondent points out that the Court has held that a State may create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures. Thus, in Wolff, where we rejected any notion of an interest in good-time credits inherent in the Constitution, we also found that Nebraska had created a right to such credits. 418 U. S., at 556-557. See also Greenholtz v. Nebraska Penal Inmates, supra (parole); Vitek v. Jones, supra (transfer to mental institution). Likewise, and more relevant here, was our summary affirmance in Wright v. Enomoto, 462 F. Supp. 397 (ND Cal. 1976), summarily aff’d, 434 U. S. 1052 (1978), where the District Court had concluded that state law created a liberty interest in" }, { "docid": "1136478", "title": "", "text": "the business of prison administrators rather than of the federal courts.” Id. (emphasis original) (quoting Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)). Thus, the Supreme Court has: “consistently refused to recognize more than the most basic liberty interests in prisoners. ‘Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Thus, there is no ‘constitutional or inherent right’ to parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), and ‘the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison,’ Wolff v. McDonnell, supra, 418 U.S. [539], at 557, 94 S.Ct. [2963], at 2975 [41 L.Ed.2d 935 (1974) ], despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v. Fano, supra, 427 U.S., at 225, 96 S.Ct., at 2538, the transfer of a prisoner from one institution to another was found unprotected by ‘the Due Process Clause in an of itself,’ even though the change of facilities involved a significant modification in conditions of confinement, later characterized by the Court as a ‘grievous loss.’ Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976). As we have held previously, these decisions require that ‘[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.’ Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). See also Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552 (1980).” Hewitt, 459 U.S. at 467-68, 103 S.Ct. at 869-70. Thus, “it is plain that the transfer of an inmate to less amenable and" }, { "docid": "9841774", "title": "", "text": "557, 94 S.Ct. at 2975], despite the undoubted impact of such credits on the freedom of inmates. Finally, in Meachum v. Fano, [427 U.S. at 225, 96 S.Ct. at 2538], the transfer of a prisoner from one institution to another was found unprotected by “the Due Process Clause in and of itself,” even though the change of facilities involved a significant modification in conditions of confinement, later characterized by the Court as a “grievous loss.” Moody v. Daggett, 429 U.S. 78, 88 n. 9 [97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236] (1976). As we have held previously, these decisions require that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242 [96 S.Ct. 2543, 2547, 49 L.Ed.2d 466] (1976). See also Vitek v. Jones, 445 U.S. 480, 493 [100 S.Ct. 1254, 1264, 63 L.Ed.2d 552] (1980). It is plain that the transfer of an inmate to less amenable and more restric tive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence. The phrase “administrative segregation,” as used by the state authorities here, appears to be something of a catchall: it may be used to protect the prisoner’s safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later classification or transfer. [Statute omitted.] Accordingly, administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration. This conclusion finds ample support in our decisions regarding parole and good-time credits. Both these subjects involve release from institutional life altogether, which is a far more significant change in a prisoner’s freedoms than that at issue here, yet in Greenholtz and Wolff we held that neither situation involved an interest independently protected by the Due Process Clause. These decisions compel" }, { "docid": "22064586", "title": "", "text": "structuring the authority of prison administrators may warrant treatment, for purposes of creation of entitlements to ‘liberty,’ different from statutes and regulations in other areas.” Hewitt v. Helms, 459 U.S. 460, 470, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). Thus in the case of prisoners: [a]s long as the conditions or degree of confinement to which a prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). For instance, a transfer from a preferable to an inferior prison does not in itself state a substantive due process claim, because in the absence of an appropriate state regulation a prisoner has no liberty interest in residence in one prison or another. “That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules.” Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Similarly, a prisoner has no protected liberty or property interest per se in avoiding transfer from a desirable to an onerous job in the prison system. No constitutional right exists to prevent the transfer of an inmate to a mental hospital (Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980)) or denial of release on parole (Greenholtz v. Inmates of Nebraska Penal Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979)) or denial of good time credits, (Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)). But once the state creates such a liberty interest, due process protections attach to the decision to revoke the interest. The Supreme Court has held that a state can create a protected liberty interest by establishing sufficiently mandatory discretion-limiting standards or criteria to" }, { "docid": "22673331", "title": "", "text": "less than a month after the initial decision to confine Helms to administrative segregation, is sufficient to dispel any notions that the confinement was a pretext. Justice Blackmun, concurring in part and dissenting in part. The Court’s prior cases of course recognize that a valid criminal conviction and sentence extinguish a defendant’s otherwise protected right to be free from confinement. E. g., Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 464 (1981); Vitek v. Jones, 445 U. S. 480, 493 (1980); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 7 (1979); Meachum v. Fano, 427 U. S. 215, 224 (1976). Although prison inmates retain a residuum of liberty, see Wolff v. McDonnell, 418 U. S. 539, 555-556 (1974), this liberty is not infringed by conditions of confinement that are “within the normal limits or range of custody which the conviction has authorized the State to impose.” Meachum v. Fano, 427 U. S., at 225; see Montanye v. Haymes, 427 U. S. 236, 242 (1976); Vitek v. Jones, 445 U. S., at 493. In Meachum and Montanye, we held that certain prison transfers were “within the normal limits or range of custody” even though conditions of confinement were more severe in the prisons to which the inmates were transferred. Because I believe that a transfer to administrative segregation within a prison likewise is within the normal range of custody, I agree with the Court that respondent has not been deprived of “an interest independently protected by the Due Process Clause,” ante, at 468. I also agree that the Pennsylvania statutes and prison regulations at issue in this case created an entitlement not to be placed in administrative segregation without due process. These statutes and regulations are similar to the ones at issue in Hughes v. Rowe, 449 U. S. 5 (1980), and Wright v. Enomoto, 462 F. Supp. 397 (ND Cal. 1976), summarily aff’d, 434 U. S. 1052 (1978), and our dispositions of those cases made clear that a liberty interest was created. We also found a state-created liberty interest in Greenholtz, swpra, even though the statutes at" } ]

[ { "docid": "10231074", "title": "", "text": "OPINION WILLIAM V. ALTENBERGER, Bankruptcy Judge. In In re Hammer, the Debtor is a retired fireman who filed a Chapter 7 proceeding in bankruptcy. His schedules show $33,-000.00 of unsecured debt. Approximately three-fourths of that amount is related to gambling losses. Most of the debt was incurred through the use of credit cards. The Debtor has retirement pay of $1,319.00 per month. After deducting his regular monthly expenses, he has $350.00 per month available to pay creditors. Over a three year period he would be able to pay his creditors $12,600.00 and over a five year period, $21,000.00. In In re Pilgrim, the Debtor is a production line worker at Caterpillar Inc. He was subject to a three month layoff which caused him to fall behind in paying his debts, and he also filed a Chapter 7 proceeding in bankruptcy. He is now back to work earning net wages of $312.35 per week. He would be able to pay his creditors 100% over eighteen months. In both cases the United States Trustee filed a Motion to Dismiss the Chapter 7 proceedings pursuant to Section 707(b) of the Bankruptcy Code, 11 U.S.C. Section 707(b). In In re Pilgrim, it is the United States Trustee’s position that merely because the Debtor has the ability to repay his unsecured creditors 100% over eighteen months, the Debtor’s filing is a substantial abuse of the provisions of Chapter 7. In In re Hammer, the United States Trustee takes the position that the Debtor’s filing under Chapter 7 constitutes a substantial abuse of Chapter 7 because the Debtor has the ability to pay a significant portion of his unsecured creditors, and further because his filing was not in good faith as he incurred gambling losses which he paid through his credit cards within six months of filing. In previous cases, this Court has orally expressed its concerns with the application of Section 707(b). The reported cases by and large have applied Section 707(b) and dismissed eases brought under that section. However, this Court is still not convinced that Section 707(b) should be applied in the fashion" } ]

[ { "docid": "16095654", "title": "", "text": "to extinguish his obligations without first making a reasonable effort to fulfill them.” Id. citing In re Hudson, 56 B.R. 415, 419 (Bankr.N.D.Ohio 1985). In dismissing Ontiveros’ petition, the Court wishes to make clear that it finds no evidence of “bad faith” on the part of the debtor. Ontiveros’ financial troubles began shortly after the loss of his spouse’s income in 1990 and were no doubt exacerbated by his medical condition. However, as discussed above, the “substantial abuse” inquiry is more broad than a simple bad faith analysis. It also encompasses the situation where an honest but non-needy debtor attempts to take advantage of the protections of Chapter 7 when he has the ability to live comfortably and to pay off a substantial portion of his unsecured debts. Krohn, 886 F.2d at 126; Walton, 866 F.2d at 983; Pilgrim, 135 B.R. at 320-21; In re Stratton, 136 B.R. 804, 805-06 (Bankr.C.D.Ill.1991). The hybrid approach employed here best resolves the tension between the conflicting policies of granting the debtor a fresh start while thwarting the abuse of consumer credit. For the foregoing reasons, Debtor’s Chapter 7 petition must be dismissed as a “substantial abuse” under § 707(b). CONCLUSION IT IS THEREFORE ORDERED that the Orders of the Bankruptcy Court dated February 27,1996 [Doc. # 10] and March 7,1996 [Doc. # 11] are VACATED. IT IS FURTHER ORDERED that the Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(b) [Doc. #5] is GRANTED. This case is REMANDED to the Bankruptcy Court with orders to dismiss Ontiveros’ Voluntary Petition unless it is converted to a Chapter 13 Petition within twenty-one (21) days of the date of this Order. The Order to Show Cause against Plaintiff-Appellee is resolved. The Clerk is ordered to TERMINATE this appeal, each party to bear their own fees and costs. . Plaintiff-Appellant filed its brief on May 8, 1996. Pursuant to Federal Rule of Bankruptcy 8009, Defendant-Appellee was given 15 days in which to file a responsive brief. When this deadline passed, the Court ordered Defendant-Appellee on May 31, 1996, to show cause why it had not timely" }, { "docid": "12556234", "title": "", "text": "result, no one in this district has, to date, attempted to set down any guidelines. The Fifth Circuit has also not yet reached the issue (though other circuits have). We address it at this time to give direction to both the bar and the United States Trustee. The parties rely on two different strands of case law in support of their respective positions. One line of cases adopts what many have described as a per se rule to the effect that, if a debtor can fund a chapter 13 plan, that finding alone will justify granting a motion to dismiss under section 707(b). See In re Kelly, 841 F.2d 908, 914-15 (9th Cir.1988); In re Walton, 866 F.2d 981, 983 (8th Cir.1989); see also In re Gaukler, 63 B.R. 224, 225 (Bankr.D.N.D. 1986); In re Hudson, 56 B.R. 415, 419 (Bankr.N.D.Ohio 1985); In re Edwards, 50 B.R. 933, 937 n. 3 (Bankr.S.D.N.Y.1985);. 4 L. King, Collier on Bankruptcy, ¶ 707.07 (1987). The other eschews a bright line rule for a “totality of the circumstances” approach that leaves substantial discretion in the trial court, and that suggests evaluating a variety of factors such as the bona fides of the debtor and the nature of the pre-bankruptcy obligations sought to be discharged. See In re Green, 934 F.2d 568, 572 (4th Cir.1991); In re Pilgrim, 135 B.R; 314, 320-21 (C.D.Ill.1992). In point of fact, the two lines of authority are not all that divergent. The progenitor of the per se rule is the Ninth Circuit’s decision in Kelly, where the court said that the debtor’s ability to pay his debts when due as determined by his ability to fund a chapter 13 plan is the primary factor to be considered in determining whether granting relief would be substantial abuse.... We find this approach fully in keeping with Congress’ intent in enacting section 707(b).... This is not to say that inability to pay will shield a debtor from section 707(b) dismissal where bad faith is otherwise shown. But a finding that a debtor is able to pay his debts, standing alone, supports a" }, { "docid": "16095649", "title": "", "text": "his best effort to meet his obligation before turning to Chapter 7 relief. Senator Hatch put this in other words on the Senate floor ... “As I mentioned earlier, title III contains more than 30 amendments to ensure that a ‘fresh start’ does not become a ‘head start.’” Given this observation, the Court agrees that Congress intended to consider the ability to pay as one factor, if not the primary factor, relevant to the determination of whether a debtor’s petition constitutes “substantial abuse” under § 707(b). Id. at 317 (internal citations omitted). Moreover, unlike the court in Green, the court in Pilgrim did not see an inconsistency between § 109 and § 707(b). Id. at 318. This Court shall employ an analysis similar to that used by Judge Mihm in Pilgrim and the Sixth Circuit in Krohn. First, the Court will consider the debtor’s ability to pay as the primary, and possibly dispositive, factor. Second, a totality of the circumstances test should be employed to determine whether any mitigating factors affect the debtor’s ability to pay or whether any aggravating factors show his bad faith. See also Fitzgerald, 155 B.R. at 716-17. In evaluating these factors, the focus should not be so much on how the debt was acquired (which goes to a good faith inquiry) but rather on the debtor’s ability to repay the debt now. Id. at 717 n. 13. Finally, the Court must determine whether the debtor is so dishonest or non-needy as to warrant dismissal under § 707(b). Applying this analysis to the instant case, the Court finds that Ontiveros is a non-needy debtor whose Chapter 7 petition constitutes a “substantial abuse” under § 707(b). In his petition, Ontiveros seeks to discharge a total of $41,853.88 in unsecured debts. Ontiveros has a disposable income of $2,117.27 per month which can be used to pay his creditors 100% of the debt owed over approximately a 20-month period. Under a standard 36-month repayment plan, he could repay 100% of his unsecured debt and still retain an excess disposable income of approximately $1,000 a month. This showing is more" }, { "docid": "1068183", "title": "", "text": "spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, non-contingent, liquidated, unsecured debts that aggregate less than $100,000 and noncontin-gent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e). . See In re Shands, 63 B.R. 121, 124 (Bktcy.E.D.Mich.1985) (the debtor’s ability to pay 100% of her debts within three years, when coupled with \"some egregious circumstance,” is sufficient to trigger dismissal for substantial abuse). . See In re Keniston, 85 B.R. 202, 223 (Bktcy.D.N.H.1988) (\"the dismissal power under section 707(b) is not essentially different from the established power of a bankruptcy court to dismiss a petition under any chapter of the Bankruptcy Code that is filed with a lack of good faith or as an abuse of the process under §§ 105(a) and 707(a) of the Code”); In re Krohn, 87 B.R. 926 (N.D.Ohio 1988) (whether the debtor exhibited bad faith in the filing of his petition and schedules or engaged in “eve of bankruptcy purchases” are factors to be considered in deciding whether substantial abuse exists). . See In re White, 49 B.R. 869, 875 (Bktcy.W.D.N.C.1985) (implicit in the substantial abuse language of 707(b) is \"some type of an unfair advantage that is obtained by the Debtor because of his filing as against his creditors”). . In In re Shands, 63 B.R. 121 (Bktcy.E.D.Mich.1985), the debtor’s intent to file bankruptcy \"against her ex-husband” was an egregious circumstance which, together with her ability to pay $113.00 per week for debt service, constituted a substantial abuse of chapter 7. Similarly, a debtor's disregard of his duties to truthfully list all his obligations, or to disclose his general financial position to the court, together with the relatively exorbitant lifestyle he sought to maintain warranted dismissal in In re Bryant, 47 B.R. 21 (Bktcy.W.D.N.C.1984). A debtor-physician’s bad faith transfer of all profits from his lucrative medical practice to himself and his wife as tenants by the entireties in an effort to avoid paying a medical malpractice judgment against him justified" }, { "docid": "19168230", "title": "", "text": "schedules, his total monthly income was $7,273.34, with monthly expenses of $4,775.97, leaving disposable income of $2,497.37 per month. The United States Trustee (“UST”) timely moved to dismiss Price’s case for substantial abuse under § 707(b), arguing that Price’s debts were primarily consumer debts when the debt secured by his residence was included, and that Price could fund a chapter 13 plan paying 55% to unsecured creditors over 36 months, or 92% over 60 months. Price responded, and, after a hearing, the bankruptcy court entered an order on 28 September 2001 conditionally dismissing the case, unless Price converted the case to chapter 13 by 25 October. The court later stayed the order to 23 November. After we denied debtor’s motion for a stay, the bankruptcy court entered a final order of dismissal on 7 December 2001. Price timely appealed. II.JURISDICTION The bankruptcy court had jurisdiction via 28 U.S.C. § 1334 and § 157(b)(1), (b)(2)(A), and (b)(2)(0), and we do under 28 U.S.C. § 158(c). III.ISSUE Did the bankruptcy court abuse its discretion in dismissing Price’s chapter 7 case for substantial abuse under § 707(b)? IV.STANDARD OF REVIEW We review a bankruptcy court’s decision to dismiss a chapter 7 case for substantial abuse under § 707(b) for an abuse of discretion. Gomes v. United States Trustee (In re Gomes), 220 B.R. 84, 86 (9th Cir. BAP 1998). A court necessarily abuses its discretion if it bases its decision on an erroneous view of the law or clearly erroneous factual findings. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Before we may reverse under the abuse of discretion standard, we must be definitely and firmly convinced that the bankruptcy court committed a clear error of judgment. AT & T Universal Card Servs. v. Black (In re Black), 222 B.R. 896, 899 (9th Cir. BAP 1998). V.DISCUSSION Section 707(b) provides: [a]fter notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss" }, { "docid": "1143759", "title": "", "text": "the Court finds that, for purposes of determining dismissal under § 707(b), the Debtors have monthly expenses of approximately $4,627. 7. The Debtors’ stated monthly net income exceeds their monthly expenses by $3,373. 8. Given Debtors excess monthly income, it appears that they could pay 100% of their unsecured and undersecured claims in approximately 50 months; while Debtors could pay 73% of these claims in 36 months. 9. Debtors’ Petition and Schedules do not show any sudden economic hardship, serious illness, unemployment, or other unforeseen calamity giving rise to their bankruptcy filing. 10. Debtors have approximately $28,000 in IRA accounts which have been claimed as exempt, but which nonetheless could be used to pay the Debtors’ obligations. Conclusions of Law The determination of the issue at hand is governed by 11 U.S.C. § 707(b) which states that: After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter, whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor. While there is no precise definition of what constitutes “substantial abuse” under § 707(b), the legislative history of that section indicates that the primary focus should be upon the Debtors’ disposable income and their ability to repay a substantial portion of their debt outside of a Chapter 7 proceeding. See: S.Rep. 98-65, 98th Cong. 1st Sess., 53-54 (1983). The majority of courts which have dealt with § 707(b) questions have found that a debtor’s ability to pay a significant portion of his/her debt outside of Chapter 7 without a substantial burden is the primary factor to be considered in determining whether “substantial abuse” exists in a given case. In re Kelly, 841 F.2d 908 (9th Cir.1988), and In re Johnson, 115 B.R. 159 (Bankr.S.D.Ill.1990). Considering the undisputed facts in" }, { "docid": "18035908", "title": "", "text": "to dismiss the case or to convert it to a Chapter 7 case, the Dudleys filed a motion to convert their case to a Chapter 7 case, which the bankruptcy court granted. Thereafter, the U.S. Trustee, W. Clarkson McDow, Jr., filed a motion to dismiss the Chapter 7 case under 11 U.S.C. § 707(b)(1) as abusive. In support of his motion, the U.S. Trustee asserted that the Dudleys failed the means test under § 707(b)(2), claiming that their income, after the deduction of appropriate expenses, would leave the Dudleys with over $2,000 per month to pay creditors. The U.S. Trustee also relied on § 707(b)(3), alleging that the Dudleys’ overall circumstances demonstrated abuse because they had the financial ability to repay their creditors. The Dudleys opposed the U.S. Trustee’s motion to dismiss and filed a motion for summary judgment, contending that § 707(b) did not apply to a case such as theirs where the petition was initially filed under Chapter 13 and thereafter converted to a Chapter 7 case. They relied on the language of § 707(b), which authorizes the bankruptcy court to dismiss a case “filed by an individual debtor under this chapter,” arguing that “this chapter” refers to Chapter 7. The Bankruptcy Court agreed with the Dudleys. Although it recognized that it was ruling against the considerable weight of authority, it held that the plain meaning of “filed under this chapter” only included cases in which the petition was originally filed under Chapter 7 and did not encompass converted cases, such as the Dudleys’ case. In re Dudley, 405 B.R. 790 (Bankr. W.D.Va.2009). Thus, the bankruptcy court denied the U.S. Trustee’s motion to dismiss the bankruptcy case under § 707(b) and entered summary judgment on the issue in favor of the Dudleys. Id. at 801. The U.S. Trustee appealed the bankruptcy court’s order to the district court, and the district court, acting sua sponte, dismissed the appeal for lack of subject matter jurisdiction. McDow v. Dudley, 428 B.R. 686 (W.D.Va.2010). The district court held that the bankruptcy judge’s order was not “final” within the meaning of 28 U.S.C." }, { "docid": "12406011", "title": "", "text": "protection was not limited in any significant fash ion, and debtors “enjoyed a virtually unfettered right to a ‘fresh start’ under Chapter 7, in exchange for liquidating their nonexempt assets for the benefit of their creditors.” In re Green, 934 F.2d 568, 570 (4th Cir.1991). However, in 1984 Congress moved to limit access to Chapter 7 under certain circumstances by adding § 707(b) to the Code. Section 707(b) provides that upon its own motion, or that of the U.S. Trustee, a court may dismiss an individual Chapter 7 case if the debts involved are “primarily consumer debts” and the court finds that granting relief would constitute a “substantial abuse” of the provisions of Chapter 7. In re Vianese, 192 B.R. 61, 67 (Bankr.N.D.N.Y.1996) (footnote omitted). “Unfortunately, Congress did not define the term ‘substantial abuse....’” Green v. Staples (In re Green), 934 F.2d 568, 570 (4th Cir.1991). The vague statutory directive is the result of a fundamental tension between the Bankruptcy Code’s traditional goal — granting the debtor an opportunity for a fresh start — and creditors’ concerns born of perceived consumer credit abuses. Id. at 571; see Thompson, supra, at 249-50; Fog, supra, at 198-99. Although the statute’s eely texture has led courts “to rummage through the closet of the Congressional Record to find the legislative history that seems appropriate in the particular case,” Thompson, supra, at 251-52, I agree with Judges Yacos and Hillman that § 707(b)’s legislative history does' not illuminate the meaning of “substantial abuse” because “there simply is no legislative history in the ordinary sense as to the crucial language added and deleted in the final bill that emerged out of a conference committee with no separate conference analysis report.” In re Keniston, 85 B.R. 202, 214-15 (Bankr.D.N.H.1988), quoted in In re Snow, 185 B.R. at 400; see also In re Green, 934 F.2d at 570-71. Immediately after § 707(b)’s passage a debate ensued over whether a debtor’s ability to pay his or her debts with future income should or should not be considered in the substantial abuse analysis. See In re Keniston, 85 B.R. at" }, { "docid": "3815594", "title": "", "text": "court’s decision in this case is REVERSED AND REMANDED . The reason for this filing is not clear from Green’s testimony, but it appears to have been the result of a fine imposed while he was in the service which he was unable to pay in the monthly amounts designated. . Exceptions to the debtor’s access to discharge included potential Section 523(a) exceptions, Section 707(a) dismissals, and Section 727(a) objections to discharge. . S. 445 was not the vehicle for the final enactment of the 1984 amendments, for it was not passed by either chamber. See In re Keniston, 85 B.R. 202, 218 n. 9A (Bankr.D.N.H.1988). . We do not think that this item of legislative history applies only to Section 707(a), as the Trustee maintains. Since Congress explicitly rejected a future income threshold test for Chapter 7 eligibility in 1984, it is much more likely that this report was left undisturbed because no conflict was perceived between the report and Section 707(b). . This proposal was a feature of S. 2000, 97th Cong., 2d Sess. (1982), a Senate bill introduced prior to the passage of the 1984 Amendments. . Other bankruptcy courts which appear to adopt this \"rule” have actually based their determination of the debtor's ability to repay on an analysis of several factors, including particularly the debtor's good faith and motivation for filing under Chapter 7. See, e.g., In re Cord, 68 B.R. 5 (Bankr.W.D.Mo. 1986); In re Hudson, 56 B.R. 415 (Bankr.N.D.Ohio 1985). . Some courts have also held that the ability to repay factor must be coupled with other factors in order to find substantial abuse. In re Deaton, 65 B.R. 663, 665 (Bankr.S.D.Ohio 1986) (other factors beside mere fact that debtor has capability of funding a Chapter 13 plan are needed to find substantial abuse); In re Shands, 63 B.R. 121, 124 (Bankr.E.D.Mich.1985) (ability to pay 100% of debt within 3 years, when coupled with some egregious circumstance, is sufficient to deny Chapter 7 relief). . A per se rule dismissing Chapter 7 petitions if the debtor has the ability to substantially repay his" }, { "docid": "16095647", "title": "", "text": "adopted the totality of the circumstances test as defined by the Fourth Circuit in Green. 135 B.R. at 320. However, it is far from clear whether that opinion went so far as to adopt the actual holding in Green that the debtor’s ability to pay can never constitute a “substantial abuse” under § 707(b) without some additional evidence of bad faith. On the contrary, the court in Pilgrim stated: When assessing “substantial abuse” under § 707(b), the court must first consider the primary factor, the debtor’s ability to pay his debts, and then any mitigating factor which may temper this ability to pay or any relevant factor independent of the debtor’s ability to pay, such as bad faith. On a case-by-case basis, the court must assess whether this debtor is the dishonest or non-needy debtor whose case is intended to be dismissed under § 707(b). Id. at 320-21 (emphasis added). This analysis sounds much like the Sixth Circuit’s rebuttable presumption test in Krohn which allows the debtor’s ability to pay to be dispositive of the “substantial abuse” inquiry in the absence of any mitigating factors. 886 F.2d at 126-27. In fact, the court in Pilgrim noted that all “four circuits, along with a clear majority of district courts, have adopted a version of the totality of the circumstances test.” Id. at 321. The court only embraced the specific test in Green in order to reject the bankruptcy court’s holding that a more narrow test applied, namely, the “shock the conscience standard” of In re Keniston, 85 B.R. 202 (Bankr.D.N.H.1988). Pilgrim, 135 B.R. at 321. The court in Pilgrim framed its inquiry in terms of whether the debtor is “dishonest or non-needy,” implying that either one is sufficient to show “substantial abuse” under § 707(b). In addition, the court stated earlier in its opinion that § 707(b)— was enacted to correct an imbalance in Bankruptcy Code policy which had allowed one side of the equation, a debtor’s right to a fresh start, to outweigh the other side of the equation, the presumption, which protects creditors[’] rights, that a debtor will make" }, { "docid": "10231076", "title": "", "text": "that a majority of courts have applied it. Furthermore, there may be a question as to whether 707(b) is constitutional in the first instance. This Court’s concerns are similar to those set forth and discussed in In re Keniston, 85 B.R. 202 (Bkrtcy.D.N.H.1988). In the two cases before this Court, the constitutional issue has not been raised, and the only issue involves application of Section 707(b). This Court agrees with the court’s analysis and conclusion in In re Keniston, supra, where that court stated: Section 707(b), as interpreted under a narrow paradigm, would permit a court to dismiss a Chapter 7 case where an individual debtor’s conduct in incurring the debts that she seeks to have discharged was of a nature sufficient, in the words of one court interpreting this section, “to shock the conscience of the Court.” The question of whether a case should be dismissed under section 707(b) ought to be decided on a case-by-case analysis, rather than on the basis of a rigid predetermined test keyed to future income alone. Under a narrow paradigm, section 707(b) is intended to cover those very few cases in which the debt- or’s conduct does not fit squarely within any of the explicit standards for dismissal or nondischargeability set out in Chapter 7, but in which the debtor’s conduct is of such a nature that recourse to the provisions of Chapter 7 generally, particularly in view of the attendant injury to creditors, would contravene the most fundamental notions of fairness and the purposes of Chapter 7. The phrase “of the provisions of Chapter 7” in section 707(b) should be read, then, to apply to either implicit or explicit violations of the provisions and philosophy underlying Chapter 7 cases. In In re Pilgrim, the Debtor does have excess income, and could repay his unsecured creditors 100% over eighteen months, but that fact alone does not justify application of 707(b). The legislative history to Section 707(b) indicates that Congress did not contemplate the ability of a debtor to repay his debts in whole or in part as constituting adequate cause for dismissal. House" }, { "docid": "4757383", "title": "", "text": "MEMORANDUM AND ORDER SHABAZ, District Judge. Debtor Terrance Lee Herbst seeks relief under Chapter 7 of the Bankruptcy Code. Appellant, M. Scott Michel, United States Trustee for the Western District of Wisconsin, appeals the order of the Bankruptcy Court denying appellant’s motion to dismiss pursuant to 11 U.S.C. § 707(b). This Court granted appellant’s motion for leave to appeal the Bankruptcy Court’s interlocutory order pursuant to Bankruptcy Rule 8003 on October 11, 1988. The Court has jurisdiction pursuant to 28 U.S.C. § 158. The following is a summary of the facts before the Court on this appeal. FACTS Debtor Terrance Lee Herbst filed a petition for bankruptcy under Chapter 7, Title 11 of the United States Code on May 10, 1988. The schedules accompanying debt- or’s petition disclosed monthly income of $1,746.00 and monthly expenditures of $225.40. The debtor’s schedules further disclosed secured debt in the amount of $16,360.00 and unsecured debt in the amount of $8,062.54. Debtor expressed his intent to surrender to secured creditors collateral valued at $11,300.00. On July 27, 1988, the United States Trustee for the Western District of Wisconsin moved to dismiss debtor’s petition pursuant to 11 U.S.C. § 707(b) on the grounds that it was a substantial abuse of the Bankruptcy Code. Pursuant to Rule 707(b) a hearing was held on August 30, 1988 before the Bankruptcy Court. At the hearing the Bankruptcy Court declined to hear argument or evidence from either party. The Court stated: The matter is basically controlled, in my opinion, by the case of Wallace E. Keniston, a decision by Judge Yacos, out in New Hampshire, where he goes through in exhaustive, possibly exhausting detail, both the constitutional issues and the issues regarding the Legislative history involved in 707(b). I find no reason to take issue with Judge Yacos’ analysis as set out in 85 Bankr. at 202. Judge Yacos has gone through it in great detail. As far as I can tell from reading what’s been filed to date and what’s been presented as agreed facts, there is in fact no issue other than the ability to pay more" }, { "docid": "16095636", "title": "", "text": "unsuccessfully attempted to cut back on his expenses in order to meet his obligations to creditors. He moved out of his apartment in order to reduce the amount of rent. However, he was unable to return his 1993 BMW 325 IS automobile because it was on a 45-month lease, and he has since reaffirmed that financial obligation. Moreover, he admits to spending $450 a month for food and $300 a month for home maintenance. He discussed with his attorney the possibility of filing a Chapter 13 petition but decided against it. In his Chapter 7 petition, Ontiveros sought to discharge a total of $39,653.59 in unsecured debts. After an evidentiary hearing in the Bankruptcy Court, the Trustee adjusted this amount to $41,853.88. According to the Trustee’s calculations, after deducting reasonable living expenses, Ontiveros still earns $2,117.27 of disposable income per month. This money could be used to pay his unsecured creditors 100% of the debt owed over approximately a 20-month period. Under a standard 36-month repayment plan, he could repay 100% of his unsecured debt, and still retain an excess disposable income of approximately $1,000 a month. In the Bankruptcy Court, the Trustee argued that Ontiveros’ Chapter 7 petition should be dismissed on the basis that he has sufficient disposable income to pay off his unsecured debts in full under a Chapter 13 plan. The Trustee argued that allowing Ontiveros to obtain Chapter 7 relief under such circumstances would constitute a “substantial abuse” of that section. 11 U.S.C. § 707(b). On February 27, 1996, the Bankruptcy Court denied the Trustee’s motion under the “totality of the circumstances” test developed in In re Green 934 F.2d 568 (4th Cir.1991), and adopted by Chief Judge Mihm in In re Pilgrim, 135 B.R. 314 (C.D.I11.1992). The Bankruptcy Court reasoned: There was no showing the Debtor filed in bad faith. Except for a leased BMW automobile which the Debtor continues to pay for, there was no showing that he led an extravagant lifestyle or that he has incurred debt in a reckless or frivolous manner. A motivating factor in his decision to file bankruptcy" }, { "docid": "1068182", "title": "", "text": "to Dismiss under § 707(b) is denied. . The total includes at least twenty-three different Visa and Mastercards, all of which were obtained by completing unsolicited applications from banks all over the country. . At the hearing on the United States Trustee’s motion, the debtors presented yet another schedule of expenses totalling $3,846.51. Because of my disposition of this motion, it is unnecessary to address the appropriateness of some of the expenses or their amounts. . Notice of the motion was given to all creditors. None of the creditors appeared at the hearing or otherwise responded to the motion. Apparently, the debtors’ creditors consider bankruptcies just another cost of doing business to be passed along to other consumers in the form of higher interest rates. . 11 U.S.C. § 109(e) provides: (e) Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 and noncontin-gent, liquidated, secured debts of less than $350,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, non-contingent, liquidated, unsecured debts that aggregate less than $100,000 and noncontin-gent, liquidated, secured debts of less than $350,000 may be a debtor under chapter 13 of this title. 11 U.S.C. § 109(e). . See In re Shands, 63 B.R. 121, 124 (Bktcy.E.D.Mich.1985) (the debtor’s ability to pay 100% of her debts within three years, when coupled with \"some egregious circumstance,” is sufficient to trigger dismissal for substantial abuse). . See In re Keniston, 85 B.R. 202, 223 (Bktcy.D.N.H.1988) (\"the dismissal power under section 707(b) is not essentially different from the established power of a bankruptcy court to dismiss a petition under any chapter of the Bankruptcy Code that is filed with a lack of good faith or as an abuse of the process under §§ 105(a) and 707(a) of the Code”); In re Krohn, 87 B.R. 926 (N.D.Ohio 1988) (whether the debtor exhibited bad faith in the filing of his petition and schedules or engaged in" }, { "docid": "16095648", "title": "", "text": "“substantial abuse” inquiry in the absence of any mitigating factors. 886 F.2d at 126-27. In fact, the court in Pilgrim noted that all “four circuits, along with a clear majority of district courts, have adopted a version of the totality of the circumstances test.” Id. at 321. The court only embraced the specific test in Green in order to reject the bankruptcy court’s holding that a more narrow test applied, namely, the “shock the conscience standard” of In re Keniston, 85 B.R. 202 (Bankr.D.N.H.1988). Pilgrim, 135 B.R. at 321. The court in Pilgrim framed its inquiry in terms of whether the debtor is “dishonest or non-needy,” implying that either one is sufficient to show “substantial abuse” under § 707(b). In addition, the court stated earlier in its opinion that § 707(b)— was enacted to correct an imbalance in Bankruptcy Code policy which had allowed one side of the equation, a debtor’s right to a fresh start, to outweigh the other side of the equation, the presumption, which protects creditors[’] rights, that a debtor will make his best effort to meet his obligation before turning to Chapter 7 relief. Senator Hatch put this in other words on the Senate floor ... “As I mentioned earlier, title III contains more than 30 amendments to ensure that a ‘fresh start’ does not become a ‘head start.’” Given this observation, the Court agrees that Congress intended to consider the ability to pay as one factor, if not the primary factor, relevant to the determination of whether a debtor’s petition constitutes “substantial abuse” under § 707(b). Id. at 317 (internal citations omitted). Moreover, unlike the court in Green, the court in Pilgrim did not see an inconsistency between § 109 and § 707(b). Id. at 318. This Court shall employ an analysis similar to that used by Judge Mihm in Pilgrim and the Sixth Circuit in Krohn. First, the Court will consider the debtor’s ability to pay as the primary, and possibly dispositive, factor. Second, a totality of the circumstances test should be employed to determine whether any mitigating factors affect the debtor’s ability to" }, { "docid": "12171316", "title": "", "text": "Section 707(b) is not dependent on the petition date and what happens prior to filing; rather, whether to dismiss a case for abuse may depend on developments occurring after filing but before discharge is granted. The movant bears the burden of proving the case is abusive. In this case, the UST has presented two compelling facts evidencing abuse. First, Debtor entered bankruptcy with approximately $47,000.00 in debt. Second, a month later, Debtor received more than $90,000.00. Debtor, without explanation, opted to spend his lottery winnings on new items rather than attempt to address the debt with which he entered bankruptcy. Debtor enjoyed his lottery winnings at a time when the automatic stay kept his then-existing creditors from executing on his good fortune. Debtor failed to satisfactorily explain the dissipation of the lottery proceeds. Debtor has been shown to have had significant ability to pay his pre-petition debts. Under the totality of the financial circumstances presented to the Court, granting a Chapter 7 discharge would be an abuse. The UST has shown this Debtor is not an unfortunate debtor entitled to a fresh start. This Debtor was fortunate and could have repaid his creditors. However, through his actions, Debt- or chose his lottery winnings over a discharge and a fresh start. Accordingly, the UST has demonstrated the granting of relief to Debtor is abusive based on the totality of the circumstances. Conclusion For the foregoing reasons, the United States Trustee’s Motion to Dismiss based upon 11 U.S.C. § 707(b)(3) is GRANTED. IT IS SO ORDERED. . Doc. No. 12. . In re King, 308 B.R. 522, 528 (Bankr.D.Kan. 2004). . Compare id. (pre-BAPCPA case noting statutory presumption to grant relief to debtor and statutory “substantial abuse” standard) and In re Doherty, 374 B.R. 288, 290 (Bankr.D.Kan.2007) (noting presumption to grant relief removed by BAPCPA as well as lowering of \"substantial abuse” standard to “abuse” standard). . In re Stewart, 175 F.3d 796, 809 (10th Cir.1999). . In re Schoen, 2007 WL 643295 (Bankr.D.Kan. Mar.2, 2007) (the means test under § 707(b)(2) does not preclude considering a debtor's ability to pay under" }, { "docid": "8737861", "title": "", "text": "OPINION RALPH B. GUY, JR., Circuit Judge. Debtors, William M. and Dina E. Behlke, appeal from the decision of the Bankruptcy Appellate Panel (BAP) affirming the bankruptcy court’s order granting the Trustee’s motion to dismiss this voluntary Chapter 7 bankruptcy petition for “substantial abuse” under 11 U.S.C. § 707(b). Section 707(b) provides that the bankruptcy court, on its own .motion or the motion of the United States Trustee, “may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debt- or.” The debtors argue that the bankruptcy court erred in deciding to include 401K contributions as “disposable income” for purposes of determining the debtors’ ability to pay and in concluding that there was substantial abuse warranting dismissal under § 707(b). The debtors also argue that the BAP incorrectly applied an abuse of discretion standard in reviewing the bankruptcy court’s decision. After a review of the record and the applicable law, we affirm the bankruptcy court’s decision. I. Debtors filed a voluntary petition in bankruptcy under Chapter 7. The Trustee filed a motion to dismiss the case under § 707(b), arguing that to grant the debtors a Chapter 7 discharge in this “no asset” case would constitute a substantial abuse because the debtors have disposable income with which to pay their creditors. The parties stipulated to the underlying facts at the time of the hearing on the motion. On April 4, 2002, the bankruptcy court issued its decision setting forth the stipulated facts, the applicable law, and the reasons for finding that the Trustee met its burden of demonstrating that “these debtors are not ‘needy’ and that granting them a Chapter 7 discharge would be a ‘substantial abuse’ of the bankruptcy system.” There is no dispute concerning the stipulated facts, which the bankruptcy court set forth as follows: 1. In December 1995, William Behlke was about to become a partner in" }, { "docid": "16095637", "title": "", "text": "and still retain an excess disposable income of approximately $1,000 a month. In the Bankruptcy Court, the Trustee argued that Ontiveros’ Chapter 7 petition should be dismissed on the basis that he has sufficient disposable income to pay off his unsecured debts in full under a Chapter 13 plan. The Trustee argued that allowing Ontiveros to obtain Chapter 7 relief under such circumstances would constitute a “substantial abuse” of that section. 11 U.S.C. § 707(b). On February 27, 1996, the Bankruptcy Court denied the Trustee’s motion under the “totality of the circumstances” test developed in In re Green 934 F.2d 568 (4th Cir.1991), and adopted by Chief Judge Mihm in In re Pilgrim, 135 B.R. 314 (C.D.I11.1992). The Bankruptcy Court reasoned: There was no showing the Debtor filed in bad faith. Except for a leased BMW automobile which the Debtor continues to pay for, there was no showing that he led an extravagant lifestyle or that he has incurred debt in a reckless or frivolous manner. A motivating factor in his decision to file bankruptcy was his medical condition and the impact it might have in his employment. While filing bankruptcy will not alleviate that underlying problem, filing bankruptcy would leave him with one less problem to deal with. Implicit in the Bankruptcy Court’s opinion was the requirement that regardless of a debtor’s ability to pay off his debts, the Trustee must show some additional factor in order to establish “substantial abuse” under § 707(b). Thereafter, on March 7, 1996, the Bankruptcy Court issued an Order discharging the debtor under Chapter 7. The Trustee appeals both of these decisions to this Court. ANALYSIS The Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(a). The question of what constitutes “substantial abuse” for purposes of 11 U.S.C. § 707(b) is a matter of law to be reviewed de novo. Green 934 Fl2d at 570; Pilgrim, 135 B.R. at 319. Section 707(b) of the Bankruptcy Code provides: After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at" }, { "docid": "16095638", "title": "", "text": "was his medical condition and the impact it might have in his employment. While filing bankruptcy will not alleviate that underlying problem, filing bankruptcy would leave him with one less problem to deal with. Implicit in the Bankruptcy Court’s opinion was the requirement that regardless of a debtor’s ability to pay off his debts, the Trustee must show some additional factor in order to establish “substantial abuse” under § 707(b). Thereafter, on March 7, 1996, the Bankruptcy Court issued an Order discharging the debtor under Chapter 7. The Trustee appeals both of these decisions to this Court. ANALYSIS The Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(a). The question of what constitutes “substantial abuse” for purposes of 11 U.S.C. § 707(b) is a matter of law to be reviewed de novo. Green 934 Fl2d at 570; Pilgrim, 135 B.R. at 319. Section 707(b) of the Bankruptcy Code provides: After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debt- or. 11 U.S.C. § 707(b). The statute itself provides no definition of the term “substantial abuse.” Not surprisingly, courts are divided over this issue. The circuit courts have devised three main approaches. The Eighth and Ninth Circuits hold that a debtor’s ability to pay his debts, standing alone, justifies a § 707(b) dismissal. This is known as the per se rule. See United States Trustee v. Harris, 960 F.2d 74, 76-77 (8th Cir.1992); In re Walton, 866 F.2d 981, 984-85 (8th Cir.1989); In re Kelly, 841 F.2d 908, 914-15 (9th Cir.1988). In contrast, the Fourth Circuit has explicitly rejected the idea that solvency alone is a sufficient basis for finding “substantial abuse” under Chapter" }, { "docid": "18495657", "title": "", "text": "of bad faith.... [W]hen a debtor capable of at least partial repayment has made every effort to avoid payment of an obligation, [however,] lack of good faith sufficient to justify dismissal may be found. Id. at 707-6 through 10 (citations omitted) (emphasis added). . \"The substantial abuse” language comes from § 707(b) which allows the court considering a Chapter 7 liquidation of consumer debts to raise the issue of substantial abuse sua sponte. 11 U.S.C. § 707(b); but c.f. In Re Keniston, 85 B.R. 202 (Bankr.D.N.H. 1988) (bad faith under § 707(b) not necessarily different from general ability to dismiss for \"bad faith” under the Bankruptcy Code). . In his appellate brief, Zick did not question that \"the majority of cases allows a dismissal of Chapter 7 cases 'for cause,’ ... [w]ith the exception of In re Latimer, ... all of the Chapter 7 cases seem to accept ‘bad faith’ as a basis for dismissal of a case.” . Zick's counsel at a hearing on a stay apparently admitted that his proprietorship income had increased to $40,000 per month. . Zick listed no value in a partnership interest and in the corporation he formed to carry on Group Associates, Inc., which was in competition with IIS. He stated on 12/19/88 that he had withdrawn from his business \"as sole proprietor since February 1, 1988,\" $85,875. He also listed almost $17,000 in “individual retirement accounts\" plus $18,600 in a pension plan. (In his original voluntary petition filed in September 1988, Zick claimed monthly expenses of $9,620, including $4,000 in taxes, $400 a month on a condominium payment, and $500 on “open account debts\" of his spouse). He also listed \"salaries\" of $9,100 per month paid by his wholly owned company, but did not otherwise indicate whether a part of this was his own salary. He listed the value of household furnishings in his home \"in the affluent community of Bloomfield Hills” as only $2,000. Zick opposed in bankruptcy court revealing his “post-petition earnings” as having \"absolutely no bearing on this bankruptcy case” despite the lack of clarity and specification in this" } ]

[ { "docid": "6363097", "title": "", "text": "property of the Debtors’ estate under Section 282 of the New York State Debtor and Creditor Law. C.P.L.R. § 5205 Section 282 of the Debtor and Creditor Law also provides that a person may exempt from the property of the Estate those exemptions allowed to a Debtor pursuant to Sections 5205 and 5206 of the CPLR. Section 5205 provides an exemption for trusts, custodial accounts, Keogh Plans and other retirement plans established by a corporation by creating a conclusive presumption that these items are to be treated as created by someone other than the debtor and therefore spendthrift trusts. At the same time that the New York Debtor and Creditor Law was amended (July, 1989) subdivision (c) of Section 5205 of the CPLR was also amended. Subsection (c)(2) now reads: For purposes of this subdivision, all trusts, custodial accounts, annuities, insurance contracts, monies, assets or interests established as part of, and all payments from, either a KEOGH (HR-10), retirement or other plan established by a corporation, which is qualified under section 401 of the U.S. Internal Revenue Code of 1986, as amended, or created as a result of roll overs from such plans pursuant to section 402(a)(5), 403(a)(4) or 408(d)(3) of the Internal Revenue Code of 1986 as amended, shall be considered a trust which was created by or which has proceeded from a person other than the judgment debtor, even though such judgment debtor is (i) a self-employed individual, (ii) a partner of the entity sponsoring the KEOGH (HR-10) plan or (iii) a shareholder of the corporation sponsoring the retirement or other plan. Paragraph “3” of new subdivision “c” states: All trusts, custodial accounts, annuities, insurance contracts, monies, assets, or interests described in paragraph 2 of this subdivision shall be conclusively presumed to be spendthrift trusts under this section and the common law of the State of New York for all purposes, including, but not limited to, all cases arising under or related to a case arising under sections 101 to 1330 of Title 11 of the United States Bankruptcy Code as amended. N.Y.Civ.Prac.L. & R. § 5205 (McKinney" } ]

[ { "docid": "18724435", "title": "", "text": "takes the position that the Plan is a qualified retirement savings plan established under § 401 of the United States Internal Revenue Code of 1986, as amended (26 U.S.C. §§ 1-9722) (“IRC”). The Debtor contends that since the funds payable to her under the Order emanate from a qualifying plan they are wholly exempt from application by judgment creditors under NYCPLR § 5205(c)(2), as amended, and may, therefore, be claimed as exempt under her bankruptcy petition pursuant to § 282(2)(e) of the New York Debtor & Creditor Law (“NYD & CL”) (McKinney’s 1990). DISCUSSION Pursuant to Code § 541(a)(1), the commencement of a case in bankruptcy cre ates an “estate” comprised of all equitable or legal interests of the debtor in property. Property of the estate is a concept of exceptional breadth encompassing all interests of the debtor in property, certainly those which may be needed for a fresh start. See In re Brown, 734 F.2d 119, 123 (2d Cir.1984); In re Boon, 108 B.R. 697, 700 (W.D.Mo.1989). Pursuant to Code § 522, however, the debtor is permitted to claim certain of these property interests as exempt. See In re Boon, supra, 108 B.R. at 700. As authorized under Code § 522(b)(1) New York has “opted out” of the federal exemption scheme, choosing instead to provide its own exclusive set of exemptions in bankruptcy. See NYD & CL §§ 282 and 284. NYCPLR § 5205, listed among those exemptions permissible under NYD & CL § 282(2)(e), defines what personal property may be claimed as exempt. Subsections (c) and (d) of NYCPLR § 5205 apply to interests of the debtor in “qualified” retirement plans. In pertinent part, NYCPLR §§ 5205(c)(2) and (3), as amended, provide: (2) [A]ll trusts, custodial accounts, annuities ... monies assets or other interests established as part of, and all payments from, either a Keogh (HR-10), retirement or other plan established by a corporation, which is qualified under section 401 of the United States Internal Revenue Code of 1986, as amended, or created as a result of rollovers from such plans ... ****** (3) shall be conclusively presumed" }, { "docid": "6586205", "title": "", "text": "Thus, contrary to the Debtors’ contention, a debtor’s right to make withdrawals “for any reason” irrespective of retirement concerns is not “wholly irrelevant” to the Court’s determination regarding the claimed exemptibility of the funds pursuant to NYD & CL § 282(2)(e). This fact, in conjunction with the Program’s stated purpose to provide employees with an “opportunity for ... convenient, regular and substantial personal savings,” (emphasis added), places Kleist’s Program funds outside Congress’ intended protection of funds akin to future income. Further buttressing the Court’s conclusion that the Program is not intended to act as future income is the inclusion in the Kleist’s summary statement of information and totals under the “Pension Plan” as separate from the Program. The existence of, and additional participation in, the Pension Plan by Kleist infers that the nature, purpose and terms of the Program are distinct from that of the Pension Plan. Having discussed and concluded that the Debtors’ claimed exemption in the amount of $12,000.00 held in the Program does not qualify as a benefit under a profit sharing or similar plan on account of illness, disability, death, age or length of service within the meaning of NYD & CL § 282(2)(e), the Court must explain why such findings do not resolve the ease at bar. Though neither party has raised the issue concerning New York Civil Practice Law and Rules § 5205 (McKinney’s 1978 Supp.1990) (“NYCPLR”), it appears that the provisions set forth therein are applicable in the present case. NYD & CL § 282 lists NYCPLR § 5205 among permissible exemptions in bankruptcy for debtors domiciled in New York. Subsection (c) of NYCPLR § 5205 provides, in pertinent part, that “all trusts, custodial accounts, ... monies, assets or interests established as part of, and all payments from, either a Keogh (HR-10), retirement or other plan established by a corporation, which is qualified under section 401 of the United States Internal Revenue Code of 1986 ... shall be conclusively presumed to be spendthrift trusts under this section and the common law of the state of New York for all purposes, including ... all" }, { "docid": "3702831", "title": "", "text": "of the fund itself. An inherited IRA, which is a vehicle for receiving distribution from a tax exempt account, does not fit within the definitional scope of § 408(e)(1). See In re Kirchen, 344 B.R. 908, 914 (Bankr.E.D.Wis.2006). However, the debtors are correct in their assertion that an inherited IRA is exempt from taxation under Internal Revenue Code § 402(c)(ll). Internal Revenue Code § 408(d)(3)(C), entitled “Denial of rollover treatment for inherited accounts, etc.,” provides that “such inherited account or annuity shall not be treated as an individual retirement account or annuity for purposes of determining whether any other amount is a rollover contribution.” 11 U.S.C. § 408(d)(3)(C)(II). Thus, the beneficiary of an inherited account may not treat the inherited account as his or her own IRA by, for example, making contributions to the account or rolling over the account into another retirement plan. See id. See also, e.g., Kirchen, 344 B.R. at 913-14. Section 402(c)(ll) is a narrow exception to this general prohibition, allowing the beneficiary to move the inherited funds into an IRA account that he or she controls, without paying taxes on the distribution, by treating the transfer as an eligible rollover distribution. However, in order to be exempt from creditors under Bankruptcy Code § 522(d)(12), the inherited IRA must be exempt from taxation under §§ 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code. Section 402(c)(ll), which provides for the creation and treatment of the inherited IRA at issue in this case, is not one of these enumerated provisions. III. Conclusion Although there is no dispute that Shirley Heil’s IRA was exempt from taxation, her death and the distribution of the funds from her IRA to her daughter transformed the nature of the IRA. Her daughter, Janice, placed the distributed funds into a new account created in her deceased mother’s name from which she, as the beneficiary of the new account, must take distributions prior to retirement. Similar to the treatment of inherited IRAs under the state exemption statutes discussed in Sims and Jarboe, an inherited IRA is not equivalent to an" }, { "docid": "18724437", "title": "", "text": "to be spendthrift trusts under this section and the common law of the state of New York for all purposes, including ... all cases arising under ... the United States Bankruptcy Code....” Id. (emphasis added). NYCPLR §§ 5205(c) and (d) were amended in 1989 apparently to prevent federal bankruptcy courts, which apply state law in such matters, from directing money from the debtor’s retirement fund into the hands of non-family creditors. See In re Mann, 134 B.R. 710, 714 (Bankr.E.D.N.Y.1991) (citing NYCPLR § 5205 (Supp.1992)) (Supplementary Practice Commentaries, Income Exemptions, by D. Siegel, 1989). The 1989 amendments mark a change from pri- or law, making all interests in or payments from qualifying retirement plans wholly exempt from the reach of creditors. See id. (citing Statement of Assemblyman Sheldon Silver, New York State Legislative Annual, p. 159). This change is explained by Professor Siegel in his commentary to NYCPLR § 5205: Before the amendment, it [paragraph one of subsection (d) ] exempted 90% of trust income with no stated exception for a Keogh or like plan, and the opening language of subdivision (d) enabled the court to invade the presumably exempt 90% as well if it found that not all of the 90% was necessary for the debtor’s family. The amendment changes that in two ways. First, it makes such money 100% instead of just 90% exempt. Second, it takes all discretion away from the court to invade any part of the income even upon a finding that family needs are satisfied. NYCPLR § 5205, supra (Supplementary Practice Commentaries, by D. Siegel) (emphasis added). The Plan in the matter sub judice is a qualified retirement plan within the meaning of NYCPLR §§ 5205(c)(2) and (3). The Plan Prospectus (“Prospectus”) advises that the Plan is a “Profit-Sharing Plan with a 401(k) qualified cash or deferred arrangement feature”. See Prospectus p. 13. To be qualified under IRC § 401(k), a plan must contain a non-alienation provision. See IRC § 401(a)(13)(A). The Plan Document, at Art. XVII, ¶ 17.4, satisfies this requirement by providing: Except as otherwise provided by law or the issuance of" }, { "docid": "6586206", "title": "", "text": "or similar plan on account of illness, disability, death, age or length of service within the meaning of NYD & CL § 282(2)(e), the Court must explain why such findings do not resolve the ease at bar. Though neither party has raised the issue concerning New York Civil Practice Law and Rules § 5205 (McKinney’s 1978 Supp.1990) (“NYCPLR”), it appears that the provisions set forth therein are applicable in the present case. NYD & CL § 282 lists NYCPLR § 5205 among permissible exemptions in bankruptcy for debtors domiciled in New York. Subsection (c) of NYCPLR § 5205 provides, in pertinent part, that “all trusts, custodial accounts, ... monies, assets or interests established as part of, and all payments from, either a Keogh (HR-10), retirement or other plan established by a corporation, which is qualified under section 401 of the United States Internal Revenue Code of 1986 ... shall be conclusively presumed to be spendthrift trusts under this section and the common law of the state of New York for all purposes, including ... all cases arising under or related to a case arising under ...” the Bankruptcy Code. The legal effect of property which is held in a spendthrift trust operates not as an exemption, but as an exclusion from property of the estate. See e.g., In re Woodford, 73 B.R. 675, 678-79 (Bankr.N.D.N.Y.1987). Code § 541(c)(2) preserves the restrictions on the transfer of a spendthrift trust to the extent that the restriction is enforceable under applicable non-bankruptcy law. See H.R.Rep. No. 595, 95th Cong., 2d Sess. 369, reprinted in 1978 U.S.Code Cong. & Admin News 5963, 6325; Regan v. Ross, 691 F.2d 81, 85 (2d Cir.1982). Thus, the res held in a spendthrift trust which is valid under state law is specifically excluded from property of the debtor’s estate. It appears that the Program is swept into the purview of NYCPLR § 5205 by its rather broad language requiring only a trust or interest which is part of a plan established by a corporation which is qualified under § 401 of the Internal Revenue Code. Here, the Program" }, { "docid": "16404996", "title": "", "text": "the annuity exceeded the applicable $5,000.00 annual contribution limits, and disallowed the exemption in part. The court expressly noted that the debtor could not have rolled over the life insurance proceeds into the IRA because the proceeds did not qualify for rollover treatment. The Malsch case does not, therefore, advance the debtor’s argument. The debtor may not exempt the inherited IRA from her bankruptcy estate under the Ohio exemption. B. Is the debtor entitled to exempt the inherited IRA under 11 U.S.C. § 522(b)(3)(C)? As noted above, debtors who file in Ohio are required to take most of their exemptions under Ohio law. Bankruptcy Code § 522(b)(3)(C), however, provides one federal exemption to Ohio debtors. The statute states that: (b) (1) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (2) or, in the alternative, paragraph (3) of this subsection ... * * * (3) Property listed in this paragraph is-(C) retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986. 11 U.S.C. § 522(b)(3)(C). Unlike Ohio Revised Code § 2329.66(A)(10)(c), this exemption is not limited to the situation where the benefits are paid out based on illness, disability, death or age. The only question is whether the funds are retirement funds in an account that is tax exempt under the relevant Internal Revenue Code provisions. The Bankruptcy Code does not define “retirement funds.” The parties stipulated that the debtor’s inherited IRA was established through a direct trustee-to-trustee transfer of the assets which she received as a beneficiary of her mother’s IRA. The Bankruptcy Appellate Panel of the Eighth Circuit recently found under similar facts that an inherited IRA fell within the § 522(d)(12) exemption for funds that are retirement funds in a tax exempt account. Doeling v. Nessa (In re Nessa), No. 10-2009, 2010 WL 1407777 (B.A.P. 8th Cir. Apr. 9, 2010); but see In re Chilton, 426 B.R. 612," }, { "docid": "3702829", "title": "", "text": "funds. Moreover, as discussed above, the statutory framework governing IRAs distinguishes between an original IRA and an inherited IRA. C. Is the Account Exempt from Taxation? Assuming, arguendo, that the funds at issue in this case are “retirement funds,” the funds must also meet the second prong of the § 522(d)(12) test — the “retirement funds” must be “exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code.” 11 U.S.C. § 522(d)(12). The Chapter 13 trustee argues that an inherited IRA is not exempt from taxation under these provisions. In their response to the Chapter 13 trustee’s objection, the debtors present several arguments regarding the treatment of inherited IRAs under the Internal Revenue Code in support of their claimed exemption. First, the debtors argue that the inherited IRA is an eligible rollover under Internal Revenue Code § 402(c)(ll) and, therefore, is exempt from taxation under § 408(e)(1). Next, the debtors argue that Bankruptcy Code §§ 522(b)(4)(B) and (C) support their claimed exemption. The debtors specifically argue that (1) there is no applicable determination regarding the inherited IRA under § 7805 of the Internal Revenue Code; (2) the IRS has approved RBC Dain Rauscher to act as a custodian and, therefore, the inherited IRA is in substantial compliance with the requirements of the Internal Revenue Code; and (3) any failure of the inherited IRA to comply with the Internal Revenue Code is not their fault. See 11 U.S.C. § 522(b)(4)(B). The debtors alternatively assert that the transfer of funds from Shirley Heil’s account to Janice Chilton’s account was a trustee-to-trustee transfer protected by § 522(b)(4)(C). The debtors are intermingling two separate concepts — the tax treatment of accounts and the tax treatment of distributions — in arguing that an inherited IRA is exempt from taxation under § 408(e)(1). The Internal Revenue Code separately discusses the tax-exempt status of an IRA and the taxability of distributions from an IRA. Internal Revenue Code § 408(d) deals specifically with the taxability of distributions from an IRA, including rollovers, while § 408(e) governs the disqualification and taxability" }, { "docid": "18724441", "title": "", "text": "of the retirement benefits that were earned during the marriage. See In re Long, supra, 148 B.R. at 907-08; Ablamis v. Roper, supra, 937 F.2d at 1454; see also In re Resare, 142 B.R. 44 (Bankr.D.R.I.1992), aff'd, 154 B.R. 399 (D.R.I.1993) (former spouse’s interest in the employee spouse’s pension plan became absolute upon the granting of the divorce, and thereafter was the sole and separate property of such spouse, not a dischargeable debt of the employee/debtor spouse). Moreover, a distribution received under a QDRO may be rolled over into an eligible retirement plan, such as an Individual Retirement Account, so as to preserve the fund pending such alternate payee’s retirement. See IRC § 402(a)(6)(F). In the instant matter, despite being captioned a “Qualified Domestic Relations Order” it appears that the plan administrator, an entity which is authorized to determine the qualified status of a QDRO, see IRC § 414(p)(6)-(7), has rejected the Order as not satisfying the requirements of the statute. See Debtor’s Memo, at Exhibit B. While the Debtor’s ability to receive a distribution under the Plan turns on the qualified status of the Order, a determination here as to its exemptibility is not premature since the Order presently constitutes a recognition of the Debtor’s equitable interest in receiving a distribution from the Plan and of the Debtor’s right to obtain an amended order post-petition which satisfies the requirements of a QDRO. See In re Long, supra, supra, 148 B.R. at 907; Arnold v. Arnold, 154 Misc.2d 715, 586 N.Y.S.2d 449 (Sup.Ct.1992). Since Connelly’s interpretation of NYCPLR § 5205 would effectively prevent the Debtor from taking advantage of the opportunity to preserve the tax exempt status of her interest in the Plan until her own retirement, it contravenes the protection afforded retirement funds under, the 1989 amendments to NYCPLR §§ 5205(c) and (d) must therefore be rejected. Connelly also contends that to the extent the exemption applies at all, the funds are exempt only as long as they are held in trust. Connelly asserts that because the funds subject to the Order be came immediately payable to the Debtor," }, { "docid": "18724436", "title": "", "text": "debtor is permitted to claim certain of these property interests as exempt. See In re Boon, supra, 108 B.R. at 700. As authorized under Code § 522(b)(1) New York has “opted out” of the federal exemption scheme, choosing instead to provide its own exclusive set of exemptions in bankruptcy. See NYD & CL §§ 282 and 284. NYCPLR § 5205, listed among those exemptions permissible under NYD & CL § 282(2)(e), defines what personal property may be claimed as exempt. Subsections (c) and (d) of NYCPLR § 5205 apply to interests of the debtor in “qualified” retirement plans. In pertinent part, NYCPLR §§ 5205(c)(2) and (3), as amended, provide: (2) [A]ll trusts, custodial accounts, annuities ... monies assets or other interests established as part of, and all payments from, either a Keogh (HR-10), retirement or other plan established by a corporation, which is qualified under section 401 of the United States Internal Revenue Code of 1986, as amended, or created as a result of rollovers from such plans ... ****** (3) shall be conclusively presumed to be spendthrift trusts under this section and the common law of the state of New York for all purposes, including ... all cases arising under ... the United States Bankruptcy Code....” Id. (emphasis added). NYCPLR §§ 5205(c) and (d) were amended in 1989 apparently to prevent federal bankruptcy courts, which apply state law in such matters, from directing money from the debtor’s retirement fund into the hands of non-family creditors. See In re Mann, 134 B.R. 710, 714 (Bankr.E.D.N.Y.1991) (citing NYCPLR § 5205 (Supp.1992)) (Supplementary Practice Commentaries, Income Exemptions, by D. Siegel, 1989). The 1989 amendments mark a change from pri- or law, making all interests in or payments from qualifying retirement plans wholly exempt from the reach of creditors. See id. (citing Statement of Assemblyman Sheldon Silver, New York State Legislative Annual, p. 159). This change is explained by Professor Siegel in his commentary to NYCPLR § 5205: Before the amendment, it [paragraph one of subsection (d) ] exempted 90% of trust income with no stated exception for a Keogh or like plan," }, { "docid": "17618911", "title": "", "text": "can be used in opt-out states such as California). Congress’ intent was “to expand the protection for tax-favored retirement plans or arrangements that may not be already protected under [§ ] 541(c)(2) pursuant to Patterson v. Shumate ... or other state or Federal Law.” HR Rep. No. 31, 109th Cong., 1st Sess. 224 (2005). In addition, such retirement fund may be claimed exempt even if it is only in “substantial compliance with” applicable requirements of the IRC, or if not, if the debtor can claim that he or she is not materially responsible for such failure of compliance. Id.; 11 U.S.C. § 522(b)(4)(A)-(B). The debtor’s exemption rights under § 522(b)(3)(C) also apply to certain direct (trustee-to-trustee) transfers, providing that funds so transferred “shall not cease to qualify for exemption under paragraph (3)(c) or subsection (d)(12) by reason of such direct transfer.” 11 U.S.C. § 522(b)(4)(C). In addition, the exemption rights continue to apply “to any distribution that qualifies as an eligible rollover distribution within the meaning of section 402(c) of the Internal Revenue Code, or an amount that is a distribution from a fund or account exempt from taxation under section ... 408 ... of the Internal Revenue Code, and is deposited to the extent allowed in such a fund or account not later than 60 days after the distribution of such amount.” 4 Collier on BaNkruptcy, supra ¶ 522.10[9] at 522-91; 11 U.S.C. § 522(b)(4)(D). In this case, both parties have also supported their arguments for and against exemption with the new federal exemption law. Therefore, the court deems the exemptions as also claimed under § 522(b)(3)(C), including the provisions of § 522(b)(4), and this court may compare those statutes and look to case law which construes them. Under either federal or state law, exemptions are to be liberally construed in favor of the debtor who claims the exemption. In re Arrol, 170 F.3d 934, 937 (9th Cir.1999); Gardenhire v. Glasser, 26 Ariz. 503, 503, 226 P. 911, 912 (1924); In re Herrscher, 121 B.R. 29, 31 (Bankr.D.Ariz.1989) (citing ARS § 1-211(B) (“Statutes shall be liberally construed to effect" }, { "docid": "1077901", "title": "", "text": "are not exempt property. In addition, § 282 of the N.Y.Debt. & Cred.Law provides that a debtor may exempt from the property of the estate those exemptions allowed pursuant to § 5205 of the N.Y.Civ.Prac.L. & R. Section 5205(c)(2) as amended, provides in pertinent part that: [A]ll trusts, custodial accounts, annuities, insurance contracts, monies, assets or interests established as part of, and all payments from, either a Keogh (HR-10), retirement or other plan established by a corporation, which is qualified under section 401 of the United States Internal Revenue Code of 1986, as amended, ... shall be considered a trust which has been created by or which has proceeded from a person other than the judgment debtor, even though such judgment debt- or is (i) a self-employed individual, (ii) a partner of the entity sponsoring the Keogh (HR-10) plan, or (iii) a shareholder of the corporation sponsoring the retirement or other plan. N.Y.Civ.Prac.L. & R. § 5205(c)(2) (McKinney 1992). Paragraph 3 of new subdivision (c) states that: All trusts, custodial accounts, annuities, insurance contracts, monies, assets, or interests described in paragraph two of this subdivision shall be conclusively presumed to be spendthrift trusts under this section and the common law of the state of New York for all purposes, including, but not limited to, all cases arising under or related to a case arising under sections one hundred one to thirteen hundred thirty of title eleven of the United States Bankruptcy Code, as amended. N.Y.Civ.Prac.L. & R. § 5205(c)(3) (McKinney 1992). Accordingly, trusts created pursuant to pension plans which qualify under § 401 of the IRC of 1986, and payments therefrom, are conclusively presumed to be spendthrift trusts and are protected from judgment creditors. While § 5205 was amended to extend the exemption to “either an initial Keogh (HR-10), retirement or other plan,” Iacono at 695, the protection afforded to retirement benefits under this statute is inapplicable to the Debtor’s Keogh plans which are at issue before this Court. As discussed above, the Debtor’s Keogh plans fail to qualify under § 401 of the IRC. Accordingly, the Debtors \"Keogh” plans" }, { "docid": "21603375", "title": "", "text": "II. On appeal, Mrs. Youngblood does not challenge the bankruptcy court’s factual finding that the YBI Plan violated the “exclusive benefit” rule. Rather, she argues that the bankruptcy court was precluded from finding that the YBI Plan was not “qualified” under the Internal Revenue Code because the IRS had already made a contrary determination. We review de novo the bankruptcy court’s legal conclusion that it was not bound by the IRS determination. See McCarty v. United States, 929 F.2d 1085, 1089 (5th Cir.1991). Under the Bankruptcy Code, a debtor may claim as exempt any property that is exempt under federal, state, or local law. 11 U.S.C. § 522(b). In this case, the Young-bloods claimed the IRA as exempt under § 42.0021 of the Texas Property Code. Subsection (a) of that provision states generally that funds held in a qualified retirement plan are exempt from seizure. Subsection (b) speaks directly to the exemption of funds held in an IRA: Contributions to an individual retirement account or annuity that exceed the amounts deductible under the applicable provisions of the Internal Revenue Code of 1986 and any accrued earnings on such contributions are not exempt under this section unless otherwise exempt by law. Amounts qualifying as nontaxable rollover contributions under Section m(a)(5), 403(a)(4), 403(b)(8), or 4.08(d)(8) of the Internal Revenue Code of 1986 are treated as exempt amounts under Subsection (a), (emphasis added). Because the funds at issue in this case were rolled over from a pension plan to an IRA, the proper section for determining the taxa-bility of the rollover contribution is § 402(a)(5). At the time of the rollover in this case, § 402(a)(5)(A) provided that: If— (i) any portion of the balance to the credit of an employee in a qualified trust is paid to him, (ii) the employee transfers any portion of the property he receives in such distribution to an eligible retirement plan, and (iii) in the case of a distribution of property other than money, the amount so transferred consists of the property distributed, then such distribution (to the extent so transferred) shall not be includible in" }, { "docid": "17618946", "title": "", "text": "reason to require the debtors to formally amend Schedule C to recite § 522(b)(3)(C) as a basis for the exemption, since they already checked the § 522(b)(3) box, and invoking § 522(b)(3)(C) would have no impact on the extent to which other property is claimed as exempt. See In re Gill, 2007 WL 2990564 at *2 (Bankr.D.Dist.Col. Oct. 11, 2007). . These requirements are such things as the amount of allowable annual contribution, prohibition on commingling or investment in life insurance contracts, that the trustee be a bank, etc. See IRC § 408(a)(l)-(6). . Prior to explaining that a trustee-to-trustee transfer had actually taken place, the debtors had alleged that the funds were \"rolled” into the new account within 60 days of the mother’s death. See Debtors' Mem. in Opp. 2, ECF No. 28. An inherited IRA cannot be rolled over or allowed to receive a rollover contribution. IRS Pub. 590, p. 24. Assuming, ar-guendo, that a cash distribution was \"rolled” over, IRC § 408(d)(3)(A)(I) provides that rollovers are not included in the gross income of the individual for whose benefit the account is maintained if the entire amount received is paid into another IRA for the benefit of such individual not later than 60 days after receipt of the payment or distribution. See also § 522(b)(3)(C) and § 522(b)(4)(D) (exempting rollovers). Arguably, this section applies only where the original owner rolls over the money. See 26 C.F.R. § 1.408-1 (c)(3) (distinguishing \"individual on whose behalf an individual retirement account is established” from that same \"individual's beneficiary”). Nonetheless, the court does not find that a rollover took place, here, and therefore does not need to reach a rollover contribution issue. . In any event, the debtors maintain that Mrs. Thiem is using the money for retirement purposes because she takes only the required distributions and is reinvesting the distributions into another retirement vehicle. With regard to the debtors’ assertion that the IRA is being used for Mrs. Thiem’s retirement purposes, there is little to no evidence of this before the court. Therefore, the court will not address that part of" }, { "docid": "18724438", "title": "", "text": "and the opening language of subdivision (d) enabled the court to invade the presumably exempt 90% as well if it found that not all of the 90% was necessary for the debtor’s family. The amendment changes that in two ways. First, it makes such money 100% instead of just 90% exempt. Second, it takes all discretion away from the court to invade any part of the income even upon a finding that family needs are satisfied. NYCPLR § 5205, supra (Supplementary Practice Commentaries, by D. Siegel) (emphasis added). The Plan in the matter sub judice is a qualified retirement plan within the meaning of NYCPLR §§ 5205(c)(2) and (3). The Plan Prospectus (“Prospectus”) advises that the Plan is a “Profit-Sharing Plan with a 401(k) qualified cash or deferred arrangement feature”. See Prospectus p. 13. To be qualified under IRC § 401(k), a plan must contain a non-alienation provision. See IRC § 401(a)(13)(A). The Plan Document, at Art. XVII, ¶ 17.4, satisfies this requirement by providing: Except as otherwise provided by law or the issuance of a ‘qualified domestic relations order’ (within the meaning of [IRC] Code section 401(p)), no person shall have the right to assign, alienate, transfer, hypothecate or otherwise subject to lien his interest in or his benefit under the Plan, nor shall benefits under the Plan be subject to the claims of any creditor. Id. Connelly does not contest the qualified status of the Plan nor the Husband’s interest therein under NYCPLR § 5205(c). Rather, Connelly contends, inter alia, that the Debtor is not the benefitted party within the meaning of that statute, and may not therefore claim her interest in the Plan as exempt. This interpretation of the statute, however, improperly characterizes the Debtor’s interest in the Plan as merely the right to receive a cash payment from the Husband’s Plan account. As will be discussed, infra, the interest to which the Debtor became entitled under the Order is in the nature of an ownership interest in a distinguishable pool of retirement funds. First, both the IRC and the Employee Retirement Income Security Act of 1974" }, { "docid": "18724434", "title": "", "text": "on December 21, 1992. ARGUMENTS Connelly contends that the interest in the Plan awarded to the Debtor under the Order constitutes nothing more than a future interest of the Debtor in a cash payment which cannot be considered exempt property under NYCPLR § 5205(c). Specifically, Connelly asserts that: i) the trust exemption provided under NYCPLR § 5205(c)(1) is intended to protect only that judgment debtor for whom the funds are held in trust — in this case the Husband who was the employee/participant in the Plan, not the Debtor; ii) to the extent that the exemption applies at all, the funds are exempt only so long as they are held in trust, accordingly the funds subject to the Order became immediately payable to the Debtor and are therefore no longer protected; and iii) the transfer of an interest in the Plan to the Debtor constituted a transfer of trust funds to a third party, as such, the funds in the hands of the Debtor are no longer exempt from application by judgment creditors. The Debtor takes the position that the Plan is a qualified retirement savings plan established under § 401 of the United States Internal Revenue Code of 1986, as amended (26 U.S.C. §§ 1-9722) (“IRC”). The Debtor contends that since the funds payable to her under the Order emanate from a qualifying plan they are wholly exempt from application by judgment creditors under NYCPLR § 5205(c)(2), as amended, and may, therefore, be claimed as exempt under her bankruptcy petition pursuant to § 282(2)(e) of the New York Debtor & Creditor Law (“NYD & CL”) (McKinney’s 1990). DISCUSSION Pursuant to Code § 541(a)(1), the commencement of a case in bankruptcy cre ates an “estate” comprised of all equitable or legal interests of the debtor in property. Property of the estate is a concept of exceptional breadth encompassing all interests of the debtor in property, certainly those which may be needed for a fresh start. See In re Brown, 734 F.2d 119, 123 (2d Cir.1984); In re Boon, 108 B.R. 697, 700 (W.D.Mo.1989). Pursuant to Code § 522, however, the" }, { "docid": "17618926", "title": "", "text": "of the IRC. Tax exemption extends to funds that are in an inherited IRA, as discussed above. Therefore, the holding of Lacefield is not helpful on this issue. This court also agrees with the Tabor opinion. There, the debtor claimed an exemption for an inherited IRA account under Pennsylvania law and 11 U.S.C. § 522(b)(3)(C). The Pennsylvania statute provided an exemption for [a]ny retirement or annuity fund provided for under section.... 408, ... of the Internal Revenue Code of 1986 ..., the appreciation thereon, the income therefrom, the benefits or annuity payable thereunder and transfers and rollovers between such funds. Id. at 472. Unable to locate any state court decision on the issue of whether inherited IRAs are exempt from process under the Pennsylvania law, the court held that it need not make a determination under state law and, instead, determined that the inherited IRA was exempt under § 522(b)(3)(C). Id. at 474. Noting that Congress in enacting BAPCPA had expanded the exemption status for retirement plans that are established under provisions of the IRS Code, the bankruptcy court concluded that the increased protection for such retirement funds extended to inherited IRAs (trustee-to-trustee transfers), pursuant to the plain and unambiguous language of § 522(b)(4)(C). There are only two requirements for an IRA to be exempt under § 522(b)(3) or the corresponding federal statute, § 522(d)(12), according to the Tabor court: “(1) the amount the debtor seeks to exempt must be retirement funds; and (2) the retirement funds must be in an account that is exempt from taxation under one of the provisions of the Internal Revenue Code set forth therein.” Id. at 475 (quoting In re Nessa, 426 B.R. 312, 314 (8th Cir. BAP 2010) (§ 522(d)(12))). Both requirements were met, even though the retirement funds belonged originally to the debtor’s deceased mother, the court concluded. Tabor, 433 B.R. at 476. This court also looks to In re Kuchta, 434 B.R. 837 (Bankr.N.D.Ohio 2010). Ohio is an opt-out state and, therefore, the debt- or was allowed to claim an exemption in an inherited IRA, which was created by a trustee-to-trustee" }, { "docid": "3702830", "title": "", "text": "(1) there is no applicable determination regarding the inherited IRA under § 7805 of the Internal Revenue Code; (2) the IRS has approved RBC Dain Rauscher to act as a custodian and, therefore, the inherited IRA is in substantial compliance with the requirements of the Internal Revenue Code; and (3) any failure of the inherited IRA to comply with the Internal Revenue Code is not their fault. See 11 U.S.C. § 522(b)(4)(B). The debtors alternatively assert that the transfer of funds from Shirley Heil’s account to Janice Chilton’s account was a trustee-to-trustee transfer protected by § 522(b)(4)(C). The debtors are intermingling two separate concepts — the tax treatment of accounts and the tax treatment of distributions — in arguing that an inherited IRA is exempt from taxation under § 408(e)(1). The Internal Revenue Code separately discusses the tax-exempt status of an IRA and the taxability of distributions from an IRA. Internal Revenue Code § 408(d) deals specifically with the taxability of distributions from an IRA, including rollovers, while § 408(e) governs the disqualification and taxability of the fund itself. An inherited IRA, which is a vehicle for receiving distribution from a tax exempt account, does not fit within the definitional scope of § 408(e)(1). See In re Kirchen, 344 B.R. 908, 914 (Bankr.E.D.Wis.2006). However, the debtors are correct in their assertion that an inherited IRA is exempt from taxation under Internal Revenue Code § 402(c)(ll). Internal Revenue Code § 408(d)(3)(C), entitled “Denial of rollover treatment for inherited accounts, etc.,” provides that “such inherited account or annuity shall not be treated as an individual retirement account or annuity for purposes of determining whether any other amount is a rollover contribution.” 11 U.S.C. § 408(d)(3)(C)(II). Thus, the beneficiary of an inherited account may not treat the inherited account as his or her own IRA by, for example, making contributions to the account or rolling over the account into another retirement plan. See id. See also, e.g., Kirchen, 344 B.R. at 913-14. Section 402(c)(ll) is a narrow exception to this general prohibition, allowing the beneficiary to move the inherited funds into an IRA" }, { "docid": "18724433", "title": "", "text": "was estimated to be worth approximately $15,000. Further, the Debtor was also to receive an additional $2,046, payable from the Husband’s share of the Plan account, representing payment on arrears arising under a temporary order which had previously been entered by the state court. The Debtor’s interest in the Plan was ordered immediately payable in a single lump sum payment. As of the filing date of the petition the Debtor had not yet received a distribution from the Plan. NIMO has refused to comply with the Order stating, in a letter dated October 28, 1992, that: “[the] order is not in a form that can be accepted as constituting a qualified domestic relations or-der_” See Debtor Memorandum, at Exhibit B. Despite having not yet received a distribution from the Plan, Debtor’s Schedule C lists the entire value of her interest therein, $9,500.00, as exempt property under § 5205(c) of the New York Civil Practice Law and Rules (“NYCPLR”) (McKinney’s 1978 & 1993 Supp.). Connelly, the Debtor’s attorney in the matrimonial action, filed the within objection on December 21, 1992. ARGUMENTS Connelly contends that the interest in the Plan awarded to the Debtor under the Order constitutes nothing more than a future interest of the Debtor in a cash payment which cannot be considered exempt property under NYCPLR § 5205(c). Specifically, Connelly asserts that: i) the trust exemption provided under NYCPLR § 5205(c)(1) is intended to protect only that judgment debtor for whom the funds are held in trust — in this case the Husband who was the employee/participant in the Plan, not the Debtor; ii) to the extent that the exemption applies at all, the funds are exempt only so long as they are held in trust, accordingly the funds subject to the Order became immediately payable to the Debtor and are therefore no longer protected; and iii) the transfer of an interest in the Plan to the Debtor constituted a transfer of trust funds to a third party, as such, the funds in the hands of the Debtor are no longer exempt from application by judgment creditors. The Debtor" }, { "docid": "17618945", "title": "", "text": "See In re Greenfield, 289 B.R. 146, 149 (Bankr.S.D.Cal.2003). . BAPCPA stands for the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Public Law 109-8, 119 Stat. 23. The amendments apply to cases filed on or after October 17, 2005. BAPCPA §1501. . Congress thus exercised its power to preempt state-court exemptions. See 4 Collier on Bankruptcy ¶ 522.10[9] (the debtor's right to exempt retirement funds under § 522(b)(3)(C) \"should prevail over any conflicting state exemption laws”). The new provisions are in addition to the federal exemption under § 522(d)(10)(E) which exempts \"certain benefits that are akin to future earnings of the debtor,” HR Rep. No. 595, 95th Cong., 1st Sess. 361-62 (1977) (emphasis added), including the debtor's \"right to receive ... a payment under a ... pension ... or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor ...” 11 U.S.C. § 522(d)(10)(E) (emphasis added). . The court sees no reason to require the debtors to formally amend Schedule C to recite § 522(b)(3)(C) as a basis for the exemption, since they already checked the § 522(b)(3) box, and invoking § 522(b)(3)(C) would have no impact on the extent to which other property is claimed as exempt. See In re Gill, 2007 WL 2990564 at *2 (Bankr.D.Dist.Col. Oct. 11, 2007). . These requirements are such things as the amount of allowable annual contribution, prohibition on commingling or investment in life insurance contracts, that the trustee be a bank, etc. See IRC § 408(a)(l)-(6). . Prior to explaining that a trustee-to-trustee transfer had actually taken place, the debtors had alleged that the funds were \"rolled” into the new account within 60 days of the mother’s death. See Debtors' Mem. in Opp. 2, ECF No. 28. An inherited IRA cannot be rolled over or allowed to receive a rollover contribution. IRS Pub. 590, p. 24. Assuming, ar-guendo, that a cash distribution was \"rolled” over, IRC § 408(d)(3)(A)(I) provides that rollovers are not included in the gross income" }, { "docid": "17618910", "title": "", "text": "of whether the state of domicile has opted out of the federal scheme for other property. Of this class, § 522(b)(3)(c) is applicable in opt-out states and § 522(d)(12) applies in the federal exemption scheme. Id., § 2.17, p. 60-61. The two provisions are identical and provide an exemption for: retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986. “Now, even if some states may not allow retirement plans to be exempted from the reach of creditors, Congress has made this exemption available to all debtors by placing the language in section 522(b)(3)(c) to eliminate the opt-out.” Id. at 62. This new category of exemption rights “may be exercised by the debtor even if the debtor’s state has opted out of the federal exemption scheme.” 4 CollieR on BanKRuptcy ¶ 522.10[9] at 522-90 (16th ed. 2010); In re Patrick, 411 B.R. 659, 663-64 (Bankr.C.D.Cal.2008) (a § 522(b)(3)(c) election can be used in opt-out states such as California). Congress’ intent was “to expand the protection for tax-favored retirement plans or arrangements that may not be already protected under [§ ] 541(c)(2) pursuant to Patterson v. Shumate ... or other state or Federal Law.” HR Rep. No. 31, 109th Cong., 1st Sess. 224 (2005). In addition, such retirement fund may be claimed exempt even if it is only in “substantial compliance with” applicable requirements of the IRC, or if not, if the debtor can claim that he or she is not materially responsible for such failure of compliance. Id.; 11 U.S.C. § 522(b)(4)(A)-(B). The debtor’s exemption rights under § 522(b)(3)(C) also apply to certain direct (trustee-to-trustee) transfers, providing that funds so transferred “shall not cease to qualify for exemption under paragraph (3)(c) or subsection (d)(12) by reason of such direct transfer.” 11 U.S.C. § 522(b)(4)(C). In addition, the exemption rights continue to apply “to any distribution that qualifies as an eligible rollover distribution within the meaning of section 402(c) of the Internal Revenue Code, or" } ]

[ { "docid": "14246336", "title": "", "text": "1900, a judgment was rendered for the amount of the verdict and costs by the circuit court of Marshall county, Ind. Mo one except a creditor can maintain a petition in involuntary bankruptcy. The petitioner in this case at the time of the commission of the alleged acts of bankruptcy was not a creditor having a provable claim against the alleged bankrupt. Section 1, cl. 9, of the bankruptcy act defines a “creditor” as follows: “(9) Creditor shall include any one who owns a demand or claim provable in bankruptcy and may include his duly authorized agent, attorney or proxy.” Section 63, cl. “b,” provides as follows: “(b) Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct and may thereafter be proved and allowed against his estate.” The petitioner’s claim at the time the alleged acts of bankruptcy were committed was unliquidated. He had not at that time reduced his claim for damages for a tort into judgment. It remained an unliquidated claim until judgment was rendered on the verdict. In the case of Beers v. Hanlin, 3 Am. Bankr. R. 745, 99 Fed. 695, it is held that an unliquidated claim is not a provable debt in bankruptcy, and one arising out of tort must first be reduced to judgment, or, pursuant to application to the court, be liquidated, as the court shall direct, in order to be proved; and it is further held that where the only alleged creditor is one who' had an unliquidated claim for tort, not reduced to judgment at the time of an alleged preferential transfer, he is not a creditor who can insist that such transfer is an act of bankruptcy. The case of Ex Parte Charles, 14 East, 197, 16 Ves. 256, is a much stronger case against the petitioning- creditor than the case last cited. The case was sent by Lord Chancellor Eldon to the court of king’s bench. The facts stated by the chancellor for the opinion of the court were that an action upon the case was" } ]

[ { "docid": "10830475", "title": "", "text": "in good faith it does not make them void as to a trustee in bankruptey. The conditional vendor’s interest is in the nature of a lien, effectual as against the vendee’s creditors, if the requirements prescribed by State statute, as to filing, recording or other notice, have been fully met.” Collier on Bankruptcy (13th Ed. 1923) vol. 2, § 67 (4), p. 1520. See, also, Remington on Bankruptcy, § 1567. There are other decisions in this district which do not seem to be in harmony with the ruling of the court in the Golden Cruller & Doughnut Company Case, supra. In the case of In re Capital City Cap Co. (D. C.) 251 F. 664, Judge Rellstab held: “In Bailey v. Baker Ice Machine Co., 239 U. S. 268, 275, 36 S. Ct. 50, 60 L. Ed. 275, it was held that the status of the trustee as ‘a creditor holding a lien by legal or equitable proceedings,’ given by section 47a (2) of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 557 [Comp. St. 1916, § 9631]), in so far as it referred to the property in the custody of the bankruptey court, related back to the filing of the original petition in bankruptcy. This was reiterated in Martin, Jr., etc., v. Commercial National Bank of Macon, Georgia, 245 U. S. 513, 38 S. Ct. 176, 62 L. Ed. 441. True, in neither of these eases would the result have been different (the recordation having been made before the filing of the petition in bankruptcy), if the trustee’s status for such purpose had been fixed as of the date of adjudication. Nevertheless, the reasons given in the lee Machine Company Case for holding the date of filing the petition as the time of cleavage are controlling. It is not the passing of the title to the bankrupt’s property, under section 70a [11 USCA § 110, subd. a], but the passing of such property gremio legis for purposes of liquidation, which fixes the time when the trustee is regarded as having acquired the status of a lienholder" }, { "docid": "23187581", "title": "", "text": "22. 11 U.S.C.A. §§ 501-676. 30 Stat. 562, 11 U.S.C.A. § 103, sub. a(1). 11 U.S.C.A. § 103, sub. a(8). For the provability of contingent claims prior to tbe amendment see Keefe, Provability of Contingent Claims in Bankruptcy, 6 Fordham Law Review 18; Bankruptcy-Provability of Contingent Claims, 14 Virginia Law Review 469. See Sen.Rep.1916 on H.R. 8046, 75th Cong., 3d Sess. (1938) 4; House Hearings on H.R. 8046, 75th Cong., 2d Sess. (1937) 120. See English Bankruptcy Act of 1914, 4 & 5 Geo. 5, C. 59, § 30(3), as amended by Act of 1926, 16 and 17 Geo. 5, C. 7; Canadian Bankruptcy Act of 1919, § 104; see also William on Bankruptcy (15 ed. 1937) 146-180; Ringwood, Principles of Bankruptcy (17th ed. Roper, English, 1936) 169 et seq.; Duncan and Reilly, Bankruptcy in Canada, (2d ed. 1933) 536 et seq. Bankruptcy Act § 63, sub. a(8), 11 U.S.C.A. § 103, sub. a(8). The claim is ascertainable without undue delay. Bankruptcy Act § 57, sub. d, 11 U.S.C.A. § 93, sub. d. 11 U.S.C.A. § 107, sub. d, as amended in 1934. 11 U.S.C.A. §§ 96, sub. b, 107, subs. a(3), d and 110, sub. e, respectively. Concerning tbe reincorporation of the contents of old Section 67, sub. d, see House Report No. 1409 on H.R. 8046, 75th Cong., 1st Sess. (1937) 31-32. 11 U.S.C.A. § 107, sub. a(3). 11 U.S.C.A. § 107, sub. a(3). 11 U.S.C.A. § 98, sub. b. 11 U.S.C.A. § 107, sub. d. 11 U.S.C.A. § 110, sub. e. Section 57, sub. j of the Bankruptcy Act is not, of course, applicable. 11 U. S.C.A. § 93, sub. j. Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 78 L.Ed. 1230, 93 A.L.R. 195; Pepper v. Litton, 308 U. S. 295, 304, 60 S.Ct. 238, 84 L.Ed. 281; Securities and Exch. Comm. v. United States Realty Co., 310 U.S. 434, 455, 60 S.Ct. 1044, 84 L.Ed. 1293. Mechanics’-American Natl. Bk. v. Coleman, 8 Cir., 204 F. 24; In re Mer- win & Willoughby Co., D.C., 206 F. 116; In re Gelino’s, Inc.," }, { "docid": "3023515", "title": "", "text": "fact; or, third, contracts implied in law, enforceable by action ex contractu or quasi contract. But the obligation imposed by law where the remedy is other than by action on contract expressed or implied does not give rise to a claim for debts as used in the Bankruptcy Act. Schall v. Camors, 251 U. S. 239, 40 S. Ct. 135, 64 L. Ed. 247. Implied contracts, as used in the Bankruptcy Act, do not include every obligation which the law may impose. Alimony in arrears, ah obligation imposed by law, is not founded on contract, express or implied, but rather upon the natural and legal duty to support a wife. It results from a decree of the court of appropriate jurisdiction. Audubon v. Shufeldt, 181 U. S. 575, 21 S. Ct. 735, 45 L. Ed. 1009. The obligation of alimony, like the obligation to pay compulsory compensation, rests upon the relation or the idea of status which exists between the parties. There is a contract of marriage as there is a contract of employment creating the respective relationship to which the law attaches the duties commanded by the state. It is not a duty fixed by the agreement of the parties. The alimony is decreed by a court of competent jurisdiction; the award, by the compensation commissioner. Compensation Act, §§ 22, 123. See In re Cotton, 6 Fed. Cas. 617, No. 3,269; In re N. Y. Tunnel Co. (C. C. A.) 159 F. 688. Congress in the passage of the Bankruptcy Act, years before this new social legislation came into existence, did not foresee and provide for obligations thus imposed. It did not provide for such claims to be provable or dischargeable in bankruptcy pursuant to the provisions of section 63a (11 USCA § 103(a). It is clear that the obligation is not a quasi contractual one of the character which Congress intended to be provable and dischargeable under the 1898 act. If wisdom dictates that these claims should be provable in bankruptcy and priority given, it is a matter for Congress and not for the courts, but as yet" }, { "docid": "22234981", "title": "", "text": "to have been accepted by the Court of Appeals for the Ninth Circuit,. Colman Co. v. Withoft, supra, p. 253, and by the district courts generally. In re O’Donnell, 131 Fed. 150; In re Rothenberg, 140 Fed. 798; In re Smith, 146 Fed. 923; In re Dunlap Carpet Co., 163 Fed. 541; In re Caloris Mfg. Co., 179 Fed. 722; In re Buzzini, 183 Fed. 827; In re Refining Co., 192 Fed. 445; In re Keith-Gara Co., 203 Fed. 585; Heyman v. Third National Bank, 216 Fed. 685; In re Amdur Shoe Co., 13 F. (2d) 147. See also Germania Savings Bank v. Loeb, 188 Fed. 285, 289; Courtney v. Trust Co., 219 Fed. 57, 66 (both C. C. A. 6th). The rule thus announced seems not to have been seriously challenged until the decision, twenty-six years later, of the Court of Appeals for the Sixth Circuit in First National Bank v. Elliott, supra. In Dunbar v. Dunbar, 190 U. S. 340, the Moch case was cited and distinguished from the claim involved in that case, which was dependent upon a contingency so uncertain, as the court held, that its liquidation or valuation was impossible. In the meantime, leading text writers have stated that the liability of an endorser, upon a note falling due after the petition, is provable under § 63 (a) (4). 1 Loveland on Bankruptcy (4th ed.) p. 609; 2 Collier on Bankruptcy (13th ed.) pp. 1399-1400; 2 Remington on Bankruptcy (3rd ed.) § 777. Only compelling language in the statute itself would warrant the rejection of a construction so long and so generally accepted, especially where overturning the established practice would have such far reaching consequences as in the present instance. But such language is wanting in § 63. That section purports to be an enumeration of classes of provable claims—not an enumeration of characteristics which must inhere in every claim proved. Only by reading into subdivision (a) (4) the limitation of subdivision (a) (1) that the claim must be absolutely owing, would there be ground for rejecting a claim against a bankrupt endorser as not" }, { "docid": "7589708", "title": "", "text": "necessary to perform his offer. After confirmation, the court still has jurisdiction to compel him to do these things, as was held in the Watman and the Klein Cases. The remaining question is whether the appellants’ petition was properly brought before the referee or should have been originally presented to the District Judge. Under section 12(d), 11 USCA § 30(d) of the act, confirmation of a composition is required to be made by the judge, and section 12(e), 11 USCA § 30(e), provides that upon confirmation “the consideration shall be distributed as the judge shall direct, and the case dismissed.” Despite this language as to dismissal, the court retains jurisdiction so long as anything remains to be done to carry out the composition. In re Kalnitzsky Bros. & Oppenheim (D. C.) 285 F. 469, affirmed 285 F. 652 (C. C. A. 2); Murphy, Gorman & Waterhouse v. Manufacturers’ Nat. Bank, 30 F.(2d) 389 (C. C. A. 1); In re Klein, supra (assumed). It would seem, however, that proceedings to secure an amendment of the order of confirmation or distribution of the consideration must be initiated before the judge, and that the referee can act only upon special reference. But cf. United States v. Sondheim, 188 F. 378, 380 (D. C. Mass.); Collier, Bankruptcy (13th Ed.) 458. It is true that in Re Mirsky, supra, liquidation of a disputed claim was had before the referee, but the question of his jurisdiction does not appear to have been raised, as the opinion does not advert to it. However, even if the referee was right in declining jurisdiction, we think 'the District Court should have taken it. To affirm the referee’s dismissal of the petition and require a new petition in identical terms to be filed with the court would seem an unnecessary technicality of procedure. A petition to review an order of the referee is provided for only by general order 37 (11 USCA § 53) and local rule of court. We see no reason why it should be treated with inflexible formality. If the referee has no jurisdiction of a petition," }, { "docid": "118240", "title": "", "text": "by any provision oE the Bankruptcy Act, but by the applicable principles of the common law, or the laws of the state in which the right of action may arise. In other words, the Bankruptcy Act, merely permits the trustee to assert the rights which the creditor could assert but for the pendency of the bankruptcy proceedings, and if, for any reason arising under the laws of the slate, the action could not he maintained by the creditor, the same disability will bar the trustee. Collier on Bankruptcy (10th Ed.) 1042 (f) and (g); In re Mullen (D. C.) 101 Fed. 413; Holbrook v. First International Trust Co., 220 Mass. 150, 107 N. E. 665; Manning v. Evans (D. C.) 156 Fed. 106. The rig ills of the trustee being governed by these limitations, I am of opinion that the defense of the statute of limitations interposed by defendant must be sustained. That defense is based on section 338 of the Code of Civil Procedure of this state, fixing the limitations of time within which actions must be commenced, subdivision 4 of which provides: “Within throe years: * An action for relief on the ground of fraud or mistake. The cause of action in stick case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” It appeared in evidence at the trial that in an action brought in the state court by the defendant here against the sheriff to recover property seized by the latter in satisfaction of a judgment theretofore recovered by McGinn, the creditor in whose right the present action is sought to be maintained, against C. F. Willey, the bankrupt, whose estate the trustee represents, and which was tried in March, 19J4, if was disclosed by testimony given in the presence oE McGinn and his counsel that pending that suit there had been a surreptitious, clandestine, and presumptively fraudulent transfer on the books of a local bank by the judgment debtor to his brother, this defendant, of a part of the same fund here" }, { "docid": "8386968", "title": "", "text": "person of the bankrupt ... shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process.... . Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, § 401, 92 Slat. 2549, 2682. . The relevant portion of 11 U.S.C. § 522(b) provides as follows: Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate cither— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this section specifically docs not so authorize; or, in the alternative, (2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition .... . See Ruebush at 173, quoting with approval . from Black v. McClelland, 3 Fed.Cas. No. 1462 (W.D.Pa.1875): \"Now, a claim which has not obtained the condition of a fixed liability cannot be characterized as a debt due and payable either presently or at a future day . We note that these changes parallel those made in the Bankruptcy Reform Act with regard to unliquidated tort claims of a third party against a debtor in bankruptcy. Under the old Act, tort claims were not provable, allowable, or dischargeablc in bankruptcy, unless the third party had brought an action on such a claim or reduced the claim to judgment before the debtor commenced bankruptcy proceedings. Bankruptcy Act §§ 17(a), 57(d), 63(a)(1), 63(a)(7) (former 11 U.S.C. §§ 35(a), 93(d), 103(a)(1), 103(a)(7)); 3 Collier on Bankruptcy ¶ 57.15, at 249 (14th cd. 1983); 3A Collier on Bankruptcy § 63.25[1], at 1891-92, § 63.29, at 1909-10. Un-dcr the Bankruptcy Reform Act, unliquidated negligence claims are claims against the estate which arc dischargeable. 11 U.S.C. § 101(4); Lcg.Hisl. at 5807-8, 6266; 2 Collier on Bankruptcy § 101.04, at 101-16.2 (15th cd. 1983). We further note that the Virginia statute, Va. Code § 34-4, until its 1978 amendment protected" }, { "docid": "18202419", "title": "", "text": "provable although the contingency was not exercised until after the filing of the petition. Merwine v. Mt. Pocono Light & Improvement Co., 304 Pa. 517, 156 A. 150, 151; Guaranty Trust Company of New York v. Henwood, 8 Cir., 86 F.2d 347. Chapter X recognizes the necessity of recognizing claims which might not otherwise be provable in bankruptcy, and the term “claim” has been defined in Section 106(1) of the Bankruptcy Act, 11 U.S. C.A. Sec. 506(1), as follows: “‘claims’ shall include all claims of whatever character against the debtor or its property, except stock, whether or not such claims are provable under section 63 of this Act or whether secured or unsecured, liquidated or unliquidated, fixed or contingent.” (emphasis added) In keeping with the fundamental purpose of effecting a rehabilitation of a financially embarrassed corporation by the reorganization of its creditor obligations and shareholders’ interest it is essential to discharge all demands of whatever sort, executory and contingent, presently due or to mature in the future. City Bank Farmers Trust Co. v. Irving Trust Co., 299 U.S. 433, 438-439, 57 S.Ct. 292, 81 L.Ed. 324 (1937); In re Plankinton Bldg. Co., C.A. 7th (1943) 135 F.2d 273. Unless all claims are treated in the plan preferences will result. Hippodrome Bldg. Co. v. Irving Trust Co., C.A. 2nd (1947) 91 F.2d 753. The resolving and liquidating of contingent claims of creditors become essential in a Chapter X proceeding because the Bankruptcy Act provides that when the plan is consummated, a final decree shall be entered “discharging the debtor from all its debts and liabilities and terminating all rights and interest of the stockholders of the debtor, except as provided in the plan or in the order confirming the plan or in the order directing or authorizing the transfer or retention of property.” Bankruptcy Act, Section 228(1), 11 U.S.C.A., Sec. 628(1). “It has been said that a satisfactory reorganization would be nearly impossible without proper recognition and disposition of contingent and unliquidated claims.” Collier on Bankruptcy, Vol. 6A, Section 9.06, Pg. 168. This is particularly true, as here, where, the right" }, { "docid": "4346945", "title": "", "text": "1), and In re Amstein, 101 F. 706 (D. C. S. D. N. Y.). See, also, In re Schulte United, 2 F. Supp. 285 (D. C. S. D. N. Y.); In re Jorolemon-Oliver Co., 213 F. 625 (C. C. A. 2). Compare In re Barton Co., 34 F.(2d) 517 (D. C. D. N. H.); Trust Co. of Georgia v. Whitehall Holding Co., 53 F.(2d) 635 (C. C. A. 5); In re Desnoyers Shoe Co., 227 F. 401, 402 (C. C. A. 7). The two eases last citad are perhaps distinguishable from those where the claims were held nonprovable; in the Whitehall Case it is said that the contract contained clauses “voiding the lease in the event of bankruptcy,” and in the Desnoyers Shoe Co. Case the lease was to cease at the option of the lessor “if the lessee becomes insolvent or bankrupt.” The eases which have denied provability to claims based upon a covenant to restore alterations at the termination or expiration of a lease have stressed the language of section 63a (1) of the Bankruptcy Act, 11 US CA § 103 (a) (1) requiring the bankrupt’s debt to be “a fixed liability * * * absolutely owing at the time of the filing of the petition against him, whether then payable or not.” McDonnell v. Woods, supra, was decided after the Supreme Court had announced in Central Trust Co. v. Chicago Auditorium, 240 U. S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580, the doctrine that bankruptcy is an anticipatory breach of the bankrupt’s executory contracts, although it gives little or no consideration to the language of section 63a (4), 11 USCA § 103 (a) (4) whieh permits proof of a debt “founded * * * upon a contract express or implied.” That claims provable under the latter subdivision need not be abso lutely owing at the time of the filing of the petition is made clear by the recent opinion of Mr. Justice Stone in Maynard v. Elliott, 283 U. S. 273, 51 S. Ct. 390, 75 L. Ed. 1028. It" }, { "docid": "6036286", "title": "", "text": "GODDARD, District Judge. This is a motion to dismiss a petition in bankruptcy filed against Morton A. jSmith by the receiver of the alleged bankrupt, Produce Purveyors, Inc., who was appointed in an involuntary proceeding, and which has not yet been adjudicated. The ground urged for permitting the receiver of the Produce Purveyors, Inc., to file the petition in bankruptcy against Smith, is the necessity of conserving his assets for the benefit of Produce Purveyors, Inc., of which Smith was an officer, and to whom it is alleged Smith is indebted. Section 59b of the Bankruptcy Act (Act July 1, 1898, c. 541; 11 USCA § 95(b) provides : “Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to $500 or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt.” In the case at bar, it appears that there are less than twelve creditors, so that one “creditor” may file the petition. However, a creditor under the Bankruptcy Act of 1898, 30 Stat. 565, § 1(9), 11 USCA § 1(9), is defined: “(9) ‘Creditor’ shall include any one who owns a demand or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy.” A receiver in bankruptcy is not the owner of the claim, and certainly not before adjudication could he he regarded as the agent, attorney, or proxy of the alleged bankrupt. The receiver takes no title to the property; he is merely a custodian. Upon the election of the trustee, the bankrupt’s title vests in the trustee as of the date of adjudication. In re Zotti (C. C. A.) 186 F. 84, Ann. Cas. 1914A, 240; In re Michaelis & Lindeman (D. C.) 196 F. 718; In re Larkkey (D. C.) 214 F. 867. In Boonville National Bank v. Blakey, 107 F. 891, involving the question whether a" }, { "docid": "13425576", "title": "", "text": "be paid for the use of demised premises for a period not exceeding six months after date of sale, any agreement of the parties to the contrary notwithstanding.” The construction of this statute is not in question nor that it is ample to establish a landlord’s lien on merchandise such as this. I. The position of the trustee is that such a lien is in aid of, subordinate to and must be supported by a debt provable in bankruptcy, and that a claim for rent accruing subsequent to the filing of the petition in bankruptcy is not a debt provable in bankruptcy under section 63 of the Bankruptcy Act (Comp. St. § 9647). The position of the landlord is that such a lien is governed and preserved by section 67d of the act (Comp. St. § 9651) and is not controlled by section 63. Under the decisions of this circuit, a claim for rent accruing subsequent to the filing of the petition in bankruptcy (except for any period during which the rental property is occupied by the receiver or trustee in bankruptcy) is not a provable debt within the meaning of section 63 of the act because not fixed at the time the petition in bankruptcy was filed nor capable of liquidation. Watson v. Merrill, 136 F. 359, 69 C. C. A. 185, 69 L. R. A. 719. Also see In re Roth & Appel, 181 F. 667, 104 C. C. A. 649, 31 L. R. A. (N. S.) 270 (2d Cir.); Colman v. Withoft, 195 F. 250, 115 C. C. A. 222 (9th Cir.); Ellis v. Rafferty, 199 F. 80; Atkins v. Wilcox, 105 F. 595, 44 C. C. A. 626, 53 L. R. A. 118 (5th Cir.)Collier on Bankruptcy (13th Ed.) p. 1422 et seq. Therefore, the issue is whether a lien to secure a debt not provable under section 63 may be established and enforced in a court of bankruptcy against property of a bankrupt. “A lien is a right of property, and not a mere matter of procedure.” The Lottawanna, 21 Wall. 558, 579, 22 L." }, { "docid": "16113257", "title": "", "text": "not being a suit under section 96, title 11 USCA (section 60 of the Bankrupt Act), section 107, title 11 USCA (section 67 of the Bankrupt Act), or section 110, title 11 US CA (section 70e of the Bankrupt Act). I entertain no doubt that if the defendant trustee desired to do so, and had the funds with which to do so (and the evidence shows he does not have the funds), he could proceed under Supreme Court General Order 28 (11 USCA following section 53) to redeem. But the bankruptcy court would, in such a proceeding, acquire jurisdiction over plaintiff, and the stock only to enforce redemption, and not otherwise, and for no other purpose. The foregoing discussion is upon the finding and conclusion that the bankruptcy court and defendant, its trustee, have neither actual nor constructive possession of the stock. If it has either, the bankruptcy court, and not this court, has jurisdiction, unless defendant, by his long delay in proceeding in the bankruptcy court, and by filing his cross-action here, has waived it. U. S. Fidelity & Guaranty Co. v. Bray, 225 U. S. 205, 32 S. Ct. 620, 56 L. Ed. 1055; Ex parte Baldwin & Thompson, 291 U. S. 610, 54 S. Ct. 551, 78 L. Ed. 1020; Isaacs v. Hobbs Tie & Timber Co., 282 U. S. 734, 51 S. Ct. 270, 75 L. Ed. 645; Straton v. New, 283 U. S. 318, 51 S. Ct. 465, 75 L. Ed. 1060; In re Henry (D. C.) 50 F.(2d) 453; State Trust & Savings Bank v. Dunn (C. C. A.) 24 F.(2d) 477; Id., 278 U. S. 582, 49 S. Ct. 184, 73 L. Ed. 518. I think, however, there is no escape from the conclusion that plaintiff, and not the bankruptcy court, has possession of the stock, and that this court properly took jurisdiction of plaintiffs bill when filed, and has jurisdiction now. Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426, 44 S. Ct. 396, 68 L. Ed. 770; In re Hudson River Nav. Corp., supra; In re Greenbaum & Sons (D. C.) 6" }, { "docid": "7834477", "title": "", "text": "of his claim against the government after the estate had been closed, succeeded in 1926 in obtaining a sum in excess of $100,000 as a refund of taxes paid for the years 1918 and 1919; and that he has used “nearly all” of this money to pay certain of his former creditors “to whom he considered himself under moral obligation.” He now objects to the reopening of the bankruptcy proceedings, and to being questioned and perhaps required to account for this money. Section 2 (8) of the Bankruptcy Act (11 USCA § 11) invests courts of bankruptcy with jurisdiction to “close estates, whenever it appears that they have been fully administered, * * * and reopen them whenever it appears that they were closed before being fully administered.” Section lid (11 USCA § 29) provides that “suits shall not be brought by or against a trustee of a bankrupt estate subsequent to two years after the estate has been closed.” The bankrupt contends that the latter section limits the time within which the power conferred by the former may be exercised. This position is untenable. Section lid relates to “suits by or against a trustee.” Clearly a creditor’s application to reopen the estate is not such a suit. In re Paine (D. C. Ky.) 127 F. 246. Numerous eases have allowed the estate to be reopened after a much longer period than 2 years. In re Paine, supra, 4 years; Pollack v. Meyer Bros. Drug Co. (C. C. A. 8) 233 F. 861, 5 years; In re Pierson (D. C. S. D. N. Y.) 174 F. 160, 10 years; In re Lighthall (D. C. N. D. N. Y.) 221 F. 791, 12 years. See, also, Bilafsky v. Abraham, 183 Mass. 401, 67 N. E. 318; Duncan v. Watson, 198 Ala. 180, 73 So. 448; Remington, Bankruptcy (3d Ed.) § 2971 et seq. Neither decision nor text-writer, so far as we have been able to discover, has over suggested that the court’s power to reopen is subject to the 2-year limitation for which the bankrupt now contends. Section lid can have" }, { "docid": "15740619", "title": "", "text": "others. Following a determination of the question of fraud, an accounting was had, and a decree awarding judgment was entered July 25, 1929. In • fixing the time when a claim of this nature becomes a debt, reference may be had to the laws relating to insolvency and bankruptcy. Until final fixation of the amount of liability, the claim was unliquidated. People v. Metropolitan Surety Co., 205 N.Y. 135, 98 N.E. 412, Ann.Cas.1913D, 1180. An unliquidated claim for damages occasioned by fraud is not a provable debt under the Bankruptcy Law (section 63 [11 U.S.C.A. § 103]) ; and tort claims not reduced to judgment are not provable in bankruptcy. In re Kroeger Bros. Co. (D.C.) 262 F. 463; In re Cunningham (D.C.) 253 F. 663. The rule is the same even though the claim was reduced to judgment after the filing of the petition in bankruptcy. In re Crescent Lumber Co. (D.C.) 154 F. 724. An exception is made, however, when the tort is waived and proof can be made on a contract, express or implied. Crawford v. Burke, 195 U.S. 176, 25 S.Ct. 9, 49 L.Ed. 147; Kreitlein v. Ferger, 238 U.S. 21, 24, 35 S.Ct. 685, 59 L.Ed. 1184; In re E. J. Arnold & Co. (D.C.) 133 F. 789; In re Filer (D.C.) 125 F. 261. In cases of fraud not involving an express contract, but resulting in unjust enrichment, an implied obligation to pay may be created. Schall v. Camors, 251 U.S. 239, 40 S.Ct. 135, 64 L.Ed. 247. As stated in Clarke v. Rogers (C.C.A.) 183 F. 518, 522, affirmed 228 U.S. 534, 33 S.Ct. 587, 57 L.Ed 953: “This, of course, is a mere fiction of law; but, like all other such fictions, it is effectual when it will- accomplish the ends of justice.” Thus, apart from the question of liquidation or contingency, the government had a provable claim in 1923. The fact that it was unliquidated would not bar its existence as a provable debt in bankruptcy, since section 63b (two subsections are designated b) of the Bankruptcy Act (11 U.S.C. A." }, { "docid": "118239", "title": "", "text": "VAN FLEET, District Judge. This is an action at law by a trustee in bankruptcy to recover a certain fund alleged to have been transferred by the bankrupt to his brother in fraud of the rights of his creditors. It is admittedly prosecuted under the authority of section 70e of the Bankruptcy Act (Comp. St. § 9654), which provides that— “Tlie trustee may avoid any transfer by the bankrupt of Ms property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred,” etc. It is well established that the effect of this section is to clothe the trustee with no new or additional right in the premises over that possessed by a creditor, hut simply puts him in the shoes of the latter, and subject to the same limitations and disabilities that would have beset the creditor in the prosecution of the action on his own behalf; and the rights of the parties are to be determined, not by any provision oE the Bankruptcy Act, but by the applicable principles of the common law, or the laws of the state in which the right of action may arise. In other words, the Bankruptcy Act, merely permits the trustee to assert the rights which the creditor could assert but for the pendency of the bankruptcy proceedings, and if, for any reason arising under the laws of the slate, the action could not he maintained by the creditor, the same disability will bar the trustee. Collier on Bankruptcy (10th Ed.) 1042 (f) and (g); In re Mullen (D. C.) 101 Fed. 413; Holbrook v. First International Trust Co., 220 Mass. 150, 107 N. E. 665; Manning v. Evans (D. C.) 156 Fed. 106. The rig ills of the trustee being governed by these limitations, I am of opinion that the defense of the statute of limitations interposed by defendant must be sustained. That defense is based on section 338 of the Code of Civil Procedure of this state, fixing the limitations of time within which" }, { "docid": "5752345", "title": "", "text": "either reasonable or expeditious valuation was disallowed entirely, as unprovable. See Bankruptcy Act § 57(d), 11 U.S.C. § 93(d); see also In re Esgro, Inc., 645 F.2d 794, 798 (9th Cir.1981). The inequitable results occasioned by the “provability” requirement under the Bankruptcy Act — precluding the would-be creditor from participating in distribution and the debtor from obtaining a discharge of the debt — ill served the two principal legislative policies federal bankruptcy law was meant to foster. See In re Johns-Manville Corp., 57 B.R. 680, 686-87 (Bankr.S.D.N.Y.1986). Congress eventually jettisoned the “provability” requirement by defining “claim” as broadly as practicable. Under the Bankruptcy Code, a “claim” is a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured.” 11 U.S.C. § 101(4). Of course, “allowance” remains a prerequisite to distribution under the Bankruptcy Code, see 11 U.S.C. § 726; In re Butterworth, 50 B.R. 320, 322 (Bankr.W.D.Mich.1984), but the bankruptcy court is required, for purposes of allowance, to estimate the amount of every timely contingent or unliquidated prepetition claim, even if a nominal estimate alone is practicable. See 11 U.S.C. § 502(c); H.R.Rep. No. 595, 95th Cong., 1st Sess. 352-354 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 65 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5851, 6307, 6309, 6310; Lawrence D. King, 3 Collier on Bankruptcy § 502.02, at 502-20 (15th ed. 1991). The difficulty or impossibility of estimation no longer constitutes a legitimate basis for disallowing any prepetition right to payment as a “claim” against the estate. See In re Baldwin-United Corp., 55 B.R. 885, 898 (Bankr.S.D.Ohio 1985) (“An estimate necessarily implies no certainty_ It is merely ... for the purpose of permitting the case to go forward.” (quoting In re Nova Real Estate Inv. Trust, 23 B.R. 62, 66 (Bankr.E.D.Va.1982))). These legislative changes were devised deliberately to permit “ ‘the broadest possible relief in the bankruptcy court,’ ” In re Black, 70 B.R. 645, 649 (Bankr.D.Utah 1986) (quoting H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 309 (1977), U.S.Code Cong. & Admin.News" }, { "docid": "14549212", "title": "", "text": "that such expenses are not provable or dis-chargeable in bankruptcy — citing section 63a of the Bankruptcy Act (11 USCA § 103); A. G. Gugel, Trustee, v. N. O. Bank (5 C. C.. A.) 239 F. 676, 39 Am. Bankr. Rep. 161; In re Roche (5 C. C. A.) 101 F. 956; British & A. M. Co. v. Stuart (5. C. C. A.) 210 F. 425, 31 Am. Bankr.. Rep. 465, and several other eases to the effect that such attorney’s fees are not’ provable debts. My conclusion is that section 63a has no bearing on the question. Section. 67d (11 USCA § 107) applies. The vendor’s lien and first mortgage before the court in this ease is not attacked for invalidity. It is settled law that interest is to be computed on the mortgage up to the date of sale, where the security brings sufficient by its sale to pay the mortgage in full, in accordance with the terms of the mortgage, and that attorney’s fees are allowable- to the mortgagee in a reasonable amount, commensurate with the service rendered in the bankruptcy court. Such allowances do not depend upon or arise out of the contractual or conventional stipulation- in the note and mortgage. Coder v. Arts (8 C. C. A.) 152 F. 943, 15 L. R. A. (N. S.) 372; affirmed in 213 U. S. 223, 29 S. Ct. 436, 53 L. Ed. 772, 16 Ann. Cas. 1008; San Antonio Loan & Trust Co. v. Booth (5 C. C. A.) 2 F.(2d) 590; In re Fabacher (D. C.) 193 F. 556, 27 Am. Bankr. Rep. 534; Remington, §§ 921, 2615; In re Torchia (D. C.) 185 F. 576. The order of the referee discloses no error. The petition for review is denied. A decree may be entered, affirming the referee’s order. On Rehearing. Upon the original submission of the petition for review, an opinion was filed sustaining the referee’s order allowing an attorney fee of $400 to the first mortgage creditor, in accordance with a rule established in this district since 1911, when the cases of In re" }, { "docid": "15198728", "title": "", "text": "no existence prior to the bankruptcy proceedings. It was not a claim for damages against the bankrupt or its estate for breach of contract. It was a claim for use and occupation which arose when the receiver in bankruptcy took possession. It was a claim of the character of costs or expenses of administration, and as such was allowable under 11 USCA § 102.” None of the claims for compensation here involved had their existence prior to the bankruptcy proceedings, and each of the orders complained of was entered in connection with the administration of the bankrupt’s estate and not in connection with “distinct and separable issues between the trustee and adverse claimants concerning the right and title to the bankrupt’s estate.” See Taylor v. Voss, supra. See, also, Remington on Bankruptcy (3d Ed.) vol. 8, page 152; W. J. Davidson & Co. v. Friedman (C. C. A.) 140 F. 853; Yaryan Rosin & Turpentine Co. v. Isaac (C. C. A.) 270 F. 710; Hall v. Reynolds (C. C. A. 8) 224 F. 103; In ro Floore (C. C. A.) 16 F.(2d) 113; Banco Commercial De Puerto Rico v. Hunter Benn & Co. (C. C. A.) 31 F.(2d) 921. It is therefore apparent that the orders here complained of were appealable under 11 USCA § 47 (b) and bring up questions of law only, and that the appeals allowed by the District Court, namely, Nos. 9379, 9380, 9381, and 9382, must be dismissed. In considering the questions sought to be raised by the appeals under section 47 (b), there are certain considerations which must be kept in mind. This court is not required to reverse for errors which were not prejudicial or to decide questions which are moot. 7 C. J. 433; In re McDuff (C. C. A.) 101 F. 241; Collier on Bankruptcy (13th Ed.) 838; In re Madden (C. C. A.) 110 F. 348; Fisher v. Cushman (C. C. A.) 103 F. 860, 51 L. R. A. 202; Lazarus, Michel & Lazarus v. Harding (C. C. A.) 223 F. 50; In re Boston Dry Goods Co. (C. C." }, { "docid": "13425577", "title": "", "text": "by the receiver or trustee in bankruptcy) is not a provable debt within the meaning of section 63 of the act because not fixed at the time the petition in bankruptcy was filed nor capable of liquidation. Watson v. Merrill, 136 F. 359, 69 C. C. A. 185, 69 L. R. A. 719. Also see In re Roth & Appel, 181 F. 667, 104 C. C. A. 649, 31 L. R. A. (N. S.) 270 (2d Cir.); Colman v. Withoft, 195 F. 250, 115 C. C. A. 222 (9th Cir.); Ellis v. Rafferty, 199 F. 80; Atkins v. Wilcox, 105 F. 595, 44 C. C. A. 626, 53 L. R. A. 118 (5th Cir.)Collier on Bankruptcy (13th Ed.) p. 1422 et seq. Therefore, the issue is whether a lien to secure a debt not provable under section 63 may be established and enforced in a court of bankruptcy against property of a bankrupt. “A lien is a right of property, and not a mere matter of procedure.” The Lottawanna, 21 Wall. 558, 579, 22 L. Ed. 654. See; tion 67d of the act (,Comp. St. § (9651) is that “Liens given or accepted in good faith and not in contemplation of or in fraud upon this act, and for a present consideration * * * shall, to the extent of such present consideration only, not be affected by this act.” Concerning this section of the act and in connection with a landlord’s lien, the Supreme Court in City of Richmond v. Bird, 249 U. S. 174, 177, 39 S. Ct. 186, 187 (63 L. Ed. 543) said: “Section 67d, Bankruptcy Act, quoted supra, declares that liens given or accepted in good faith and not in contemplation of or in fraud upon this act, shall not be affected by it. Other provisions must, of course, be construed in view of this, positive one.” And liens not invalidated by the act remain valid. Liberty National Bank v. Bear, 265 U. S. 365, 369, 44 S. Ct. 499, 68 L. Ed. 1057; Chicago Board of Trade v. Johnson, 264 U. S. 11, 15," }, { "docid": "4346946", "title": "", "text": "the Bankruptcy Act, 11 US CA § 103 (a) (1) requiring the bankrupt’s debt to be “a fixed liability * * * absolutely owing at the time of the filing of the petition against him, whether then payable or not.” McDonnell v. Woods, supra, was decided after the Supreme Court had announced in Central Trust Co. v. Chicago Auditorium, 240 U. S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580, the doctrine that bankruptcy is an anticipatory breach of the bankrupt’s executory contracts, although it gives little or no consideration to the language of section 63a (4), 11 USCA § 103 (a) (4) whieh permits proof of a debt “founded * * * upon a contract express or implied.” That claims provable under the latter subdivision need not be abso lutely owing at the time of the filing of the petition is made clear by the recent opinion of Mr. Justice Stone in Maynard v. Elliott, 283 U. S. 273, 51 S. Ct. 390, 75 L. Ed. 1028. It was there held that the liability of a bankrupt as indorser of a promissory note was provable although the note had not matured at the time of adjudication. The bankrupt’s liability was therefore contingent on nonpayment at maturity of the note by the maker, who was insolvent, and on presentment and notice of dishonor at maturity by the claimant. The opinion, at page 277 of 283 U. S., 51 S. Ct. 390, 391, disapproves, with a reference to In re Roth & Appel, 381 F. 667, 31 L. R. A. (N. S.) 270 (C. C. A. 2), the argument that the limitation in subdivision a (1) of section 63 must he carried over into subdivision a (4), and at page 278 of 283 U. S., 51 S. Ct. 390, 392, it is said: “That some contingent claims are deemed not provable does not militate against this conclusion. The contingency of the bankrupt’s obligation may be such as to render any' claim upon it incapable of proof. It may be one beyond the control of the" } ]

[ { "docid": "22380884", "title": "", "text": "a criminal case against the exhibitor. Conviction ensued. On review, the Court held that “[t]he admission of the films in evidence requires reversal of petitioner’s conviction” because “[t]he procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer’s conclusions was not a procedure 'designed to focus searchingly on the question of obscenity,’ id., [Marcus v. Search Warrant, supra] at 732, and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression.” 392 U. S., at 637. No mention was made in the brief per curiam Lee Art Theatre opinion as to whether or not the seizure was incident to an arrest. The Court relied on Marcus and A Quantity of Books. The common thread of Marcus, A Quantity of Books, and Lee Art Theatre is to be found in the nature of the materials seized and the setting in which they were taken. See Stanford v. Texas, 379 U. S. 476, 486 (1965). In each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition. Seizing a film then being exhibited to the general public presents essentially the same restraint on expression as the seizure of all the books in a bookstore. Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards. The seizure is unreasonable, not simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness. The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is “unreasonable” in the light of the values of freedom of expression. As we stated in Stanford" } ]

[ { "docid": "18041109", "title": "", "text": "obtaining a warrant. Although the Kelly court said that the common carrier’s search was private, it held that the Government’s subsequent acceptance of the fruits constituted a seizure requiring a warrant, “unless there are special circumstances which excuse compliance with the . . warrant requirement,” decided that no exception to that requirement applied and concluded that the warrantless “seizure” was “so unreasonable as to necessitate the operation of the exclusionary rule.” Id. at 1371. The result in Kelly conflicts with the reasoning implicit in a long line of private search decisions by the Supreme Court and this circuit. In every such case, introducing the fruits of a private search as evidence was impossible unless the private party had at some point surrendered the articles to the Government. Yet neither we nor the Supreme Court have ever held that government acceptance of those articles constitutes a seizure requiring compliance with the warrant requirement, even in cases where no exception to that requirement would have covered the Government’s action. See, e. g., Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Lamar, 5 Cir., 1977, 545 F.2d 488; United States v. Blanton, 5 Cir., 1973, 479 F.2d 327; Barnes v. United States, 5 Cir., 1967, 373 F.2d 517. Thus, we decline to accept the Kelly court’s analysis. In United States v. Sherwin, 9 Cir., 1976, 539 F.2d 1, the Ninth Circuit, sitting en banc, also rejected the Kelly rationale. Sherwin also involved a common carrier employee who examined the contents of damaged packages, discovered sexually explicit books and called the FBI, which sent agents who removed two books from the shipment, without a warrant. Citing Kelly, the Sherwin defendants argued on appeal that “a seizure to which the fourth amendment is applicable occurred . . . when the F.B.I. agents obtained the two books” from the common carrier, id. at 7, but the Ninth Circuit did “not regard the government’s acceptance of materials obtained in a private search to be a seizure” and concluded that “the fourth amendment [is] not implicated when articles discovered in" }, { "docid": "5386454", "title": "", "text": "appellant Thomas C. Kelly has the requisite standing to contest the alleged seizure of the books and magazines in question. II. The remaining question is whether the alleged seizure of the books and magazines was unreasonable within the meaning of the Fourth Amendment. The government asserts and appellant concedes that .there was no governmental search since the initial discovery of the packaged materials was the result of a routine damage inspection conducted by United Parcel Service employee Gerald Spitznagel. Individual conduct devoid of governmental involvement is beyond the scope of the exclusionary rule. Burdeau v. McDowell, 256 U.S. 465, 475-76, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); see Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). For example, searches conducted by air carriers generally are not subject to Fourth Amendment protection. See United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391 (1974), cert. denied, 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828 (1975); United States v. Echols, 477 F.2d 37, 39 (8th Cir.), cert. denied, 414 U.S. 825, 94 S.Ct. 128, 38 L.Ed.2d 58 (1973); United States v. Burton, 475 F.2d 469, 471 (8th Cir.), cert. denied, 414 U.S. 835, 94 S.Ct. 178, 38 L.Ed.2d 70 (1973). The initial search of the packages conducted by Mr. Spitznagel is beyond the scope of the exclusionary rule since it has not been established that the UPS search was instigated or assisted by law enforcement officers. Cf. Corngold v. United States, 367 F.2d 1, 4-6 (9th Cir. 1966). Governmental involvement in the instant case, therefore, is limited to the activity of the FBI after first being called by Spitznagel. It must be determined whether the seizure of books and magazines by FBI Agent William McDermott constituted governmental conduct so unreasonable as to necessitate the operation of the exclusionary rule. Warrantless searches or seizures are per se unreasonable unless there are special circumstances which excuse compliance with the Fourth Amendment warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). Agent McDermott testified that an attempt was" }, { "docid": "11591366", "title": "", "text": "of the handguns, the government must demonstrate that either an exception to the warrant requirement or an exception to the exclusionary rule applies. The government argues that the warrantless search of Lundin’s home was justified either .due to exigent circumstances or as a protective sweep. In the alternative, the government contends the handguns are admissible under .the inevitable discovery exception to the exclusionary rule. We agree with the district court that these arguments fail. A. Exigent Circumstances Law enforcement .officers may conduct a warrantless search of a home when “the exigencies of the situation make the needs of,law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (alteration in original) (citation .omitted). However, exigent circumstances cannot justify a warrantless search when the police “create the exigency by engaging ... in conduct that violates the. Fourth-Amendment.” Id. at 462, 131 S.Ct. 1849. The officers in .this case had no reason other than . the crashing noises coming from , the backyard to believe that there were exigent circumstances justifying a warrantless search of. Lundin’s, home. However, the evidence shows that the officers’ knock at Lundin’s -front door caused him to make the crashing noises. Thus, to show that exigent .circumstances justified the warrantless search,, the government must show that the officers lawfully stood on Lundin’s front porch and knocked on his door. The area “immediately surrounding and ■ associated with the home” — the “curtilage” — is treated as “part of [the] home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Like searches and seizures inside the- home itself, “-searches and seizures in the curtilage without a warrant are also presumptively unreasonable.” Perea-Rey, 680 F.3d at 1184. The presumption against warrantless searches and seizures “would be of little practical value if. the State’s agents could - stand in a home’s porch or side garden and trawl for evidence with impunity.” Florida v. Jardines, 569 U.S. -, -, 133 S.Ct. 1409," }, { "docid": "18041108", "title": "", "text": "taken the shipment of films from the bus terminal, opened the cartons, examined the individual film boxes and ascertained the nature of the films. Since “there is no indication in the record” that in so doing the L’Eggs employees “acted at the behest or suggestion, with the aid, advice or encouragement, or under the direction or influence of the F.B.I.,” we conclude that these activities constituted a private search, beyond the scope of the Fourth Amendment. United States v. Clegg, 5 Cir., 1975, 509 F.2d 605, 609. B. FBI Acceptance of the Films Nevertheless, Sanders and Walter contend that the FBI unconstitutionally seized the films, by accepting them from the L’Eggs employees without obtaining a warrant. In making this assertion, they rely principally on the Eighth Circuit’s decision in United States v. Kelly, 1976, 529 F.2d 1365. There, an employee of a common carrier discovered that a ripped-open carton of goods contained sexually explicit books and magazines and called the FBI, which sent an agent who examined several of the magazines and retained samples, without obtaining a warrant. Although the Kelly court said that the common carrier’s search was private, it held that the Government’s subsequent acceptance of the fruits constituted a seizure requiring a warrant, “unless there are special circumstances which excuse compliance with the . . warrant requirement,” decided that no exception to that requirement applied and concluded that the warrantless “seizure” was “so unreasonable as to necessitate the operation of the exclusionary rule.” Id. at 1371. The result in Kelly conflicts with the reasoning implicit in a long line of private search decisions by the Supreme Court and this circuit. In every such case, introducing the fruits of a private search as evidence was impossible unless the private party had at some point surrendered the articles to the Government. Yet neither we nor the Supreme Court have ever held that government acceptance of those articles constitutes a seizure requiring compliance with the warrant requirement, even in cases where no exception to that requirement would have covered the Government’s action. See, e. g., Burdeau v. McDowell, 256 U.S." }, { "docid": "5712243", "title": "", "text": "throughout the transport. Clearly, then, Haes is the “victim” of the search and has the requisite proprietary interest to assert standing. In regard to the expectation of privacy requirement, we stated in Kelly that “a defendant’s expectation of privacy should not be deemed unreasonable merely * * * because of a right of [a freight carrier] to inspect packages.” Id., 529 F.2d at 1370 (citations omitted). The Admissibility of the Film “Masters of Discipline.” Haes contends, inter alia, that the search of his offices in Des Moines, Iowa, and the consequent seizure of the film “Masters of Discipline” was tainted by the alleged prior illegal search of the package shipped to Denver via Emery Air Freight and must, therefore, be excluded under the fourth amendment. We agree. The fourth amendment claims asserted here must be evaluated in conjunction with first amendment protections of printed materials and in this case, films. As stated in United States v. Kelly, supra, 529 F.2d at 1372, “The proper seizure of books and magazines, which are presumptively protected by the First Amendment, demands a greater adherence to the Fourth Amendment warrant requirement. Roaden v. Kentucky, supra, 413 U.S. at 504, 93 S.Ct. 2796 [37 L.Ed.2d 757], * * *” (other citations omitted). The search and seizure of property by a private individual without any governmental involvement is not subject to the dictates of the exclusionary rule. Burdeau v. McDowell, 256 U.S. 465, 467, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The courts have engaged in a two prong analysis of “allegedly” private searches, however, separately analyzing the search aspect apart from the actual seizure in order to determine whether there was sufficient governmental participation in either aspect to require fourth amendment protection. See United States v. Sherwin, 539 F.2d 1, 6-7 (9th Cir. 1976), United States v. Kelly, supra, 529 F.2d at 1371. Thus, as in Sherwin and Kelly, when the search was held to be a private search, the inquiry then focused on the nature of the seizure and whether it passed constitutional muster. In this case, though the police obtained a warrant prior" }, { "docid": "5386460", "title": "", "text": "the absence of exigent circumstances in which police must act immediately to preserve evidence of the crime, we deem the warrantless seizure of materials protected by the First Amendment to be unreasonable. See Marcus v. Search Warrant, 367 U.S. 717, 729-38, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Such a seizure without a warrant is unreasonable not because it would be easier to obtain a warrant but because prior restraint of the right to expression demands a more strict evaluation of reasonableness. See Roaden v. Kentucky, supra, 413 U.S. at 504, 93 S.Ct. 2796. For example, in Marcus v. Search Warrant, 367 U.S. 717, 732, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and Lee Art Theatre v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the Supreme Court held that a warrant for the seizure of allegedly obscene material could not be issued on the mere conclu-sionary opinion of a police officer that the material sought to be seized was obscene. In the absence of exigent circumstances, therefore, seizure of First Amendment materials should observe traditional constitutional safeguards and allow a judge to focus searchingly on the question of obscenity. The government contends that the seizure of the books by FBI Agent McDer-mott was reasonable, even without a warrant, since only sample copies of the materials were taken from the shipments. We find this distinction untenable, however, and inconsistent with the thrust of recent Supreme Court decisions. See Roaden v. Kentucky, 413 U.S. 496, 501-06, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). A contrary conclusion would reduce First Amendment materials such as books and magazines to lesser rather than greater adherence to the warrant requirement of the Fourth Amendment. See Roaden v. Kentucky, supra, 413 U.S. at 504, 93 S.Ct. 2796. We conclude that the governmental seizure of the books and magazines in the instant case was unreasonable under the Fourth Amendment since the seizure was conducted without first obtaining a warrant. As the Supreme Court stated in Roaden v. Kentucky, supra, 413 U.S. at 506, 93 S.Ct. at 2802: If, as Marcus and Lee Art" }, { "docid": "5712242", "title": "", "text": "Richard Haes in Des Moines a week later. During that search, the FBI seized a copy of “Masters of Discipline,” the film in question here. Standing. As a threshold issue, the government challenges the trial court’s determination that Haes had standing to challenge the legality of the Denver search and seizure. We agree with the trial court and find that Haes has standing. Under our analysis in United States v. Kelly, 529 F.2d 1365, 1369 (8th Cir. 1976) the “victim” of a search and seizure could establish a sufficient interest to constitute standing “if he has an adequate possessory or proprietary interest in the place or object searched” and if this assertion of a property interest is supported by an expectation of privacy. The “victim” of the search in the instant case is the individual who directed that the films be shipped in interstate commerce. The government concedes that the films were shipped pursuant to Haes’ directions and were owned by him. In addition, Haes leased the films to theaters thereby maintaining his proprietary interest throughout the transport. Clearly, then, Haes is the “victim” of the search and has the requisite proprietary interest to assert standing. In regard to the expectation of privacy requirement, we stated in Kelly that “a defendant’s expectation of privacy should not be deemed unreasonable merely * * * because of a right of [a freight carrier] to inspect packages.” Id., 529 F.2d at 1370 (citations omitted). The Admissibility of the Film “Masters of Discipline.” Haes contends, inter alia, that the search of his offices in Des Moines, Iowa, and the consequent seizure of the film “Masters of Discipline” was tainted by the alleged prior illegal search of the package shipped to Denver via Emery Air Freight and must, therefore, be excluded under the fourth amendment. We agree. The fourth amendment claims asserted here must be evaluated in conjunction with first amendment protections of printed materials and in this case, films. As stated in United States v. Kelly, supra, 529 F.2d at 1372, “The proper seizure of books and magazines, which are presumptively protected by the" }, { "docid": "18041148", "title": "", "text": "the fourth amendment. Yet in each of the cases the actual seizure of the items can be justified under traditional exceptions for warrantless seizures. For example, in Lamar, an airport official discovered heroin in a bag left by a passenger at the airport. He showed the contents of the bag to the police. When the passenger reclaimed the bag later that night, he was arrested. The bag could have been taken into possession by the police as an incident to a lawful arrest. In this case, the warrantless seizure cannot be justified under existing exceptions to the warrant clause. The employees of L’Eggs had no authority to consent to the government’s appropriation of the presumptively lawful contents of the package. The seizure cannot be justified under the plain view doctrine. See United States v. Kelly, 8 Cir. 1976, 529 F.2d at 1372-73. There were no exigent circumstances necessitating immediate action. The FBI had ample opportunity to secure a warrant on the basis of an affidavit by either the FBI agents or the employees of L’Eggs. The seizure was, therefore, unreasonable. IV. When evidence is seized in violation of the fourth amendment, the constitutional remedy is the suppression of the illegally obtained evidence. The exclusion of the films as evidence, rather than the return of the films to the owners, is the proper remedy in this case. This is true even though the source for characterizing government action as a seizure is primarily the first amendment and even though the principal interest infringed in this case is a possessory one. When the government obtains films discovered in a private search and retains them, without the knowledge of the owner, for a considerable period of time, the remedy of return comes too late. The owners did not know where the films were. Indeed, the government took pains to ensure that the defendants would not be able to locate the films. The defendants could not ask the government to return the films until they were informed that the government had taken possession of their packages. This information was conveyed, at the earliest, more" }, { "docid": "17650264", "title": "", "text": "appeals are divided on whether an illegal seizure occurs when allegedly obscene materials are uncovered by the common carrier transporting them, and subsequently turned over to law officers. In United States v. Kelly, supra, a UPS manager, while examining a package damaged in transit, discovered printed materials perceived by him to be obscene. An FBI agent was invited to the premises, who inspected the materials and seized several magazines. UPS completed delivery of the remaining materials. No warrant was obtained prior to the material’s seizure. The warrantless seizure was held illegal, with the court commenting: “Although the FBI seizure of the books and magazines was made with the consent of the UPS, it is clear that such consent does not satisfy the requirements of the Fourth Amendment.” at 1371. Only the seizure was condemned. The initial-UPS search was found nonviolative of the defendant’s constitutional rights; and neither the FBI’s warrantless visit to UPS premises nor the agent’s examination of the materials was held illegal. In discussing why a warrant should have been obtained prior to the material’s seizure, the court noted: “The FBI had ample opportunity to obtain a valid warrant based on the affidavit of Mr. Spitznagel [the UPS manager] or Agent McDermott [the investigating FBI agent] prior to the seizure of any books or magazines.” at 1373. But see United States v. Sherwin, supra. The holding in Kelly does not render inadmissible the controverted evidence in this case. It is problematic that any seizure occurred as to the UPS package herein. The agent’s act of photocopying, with UPS permission, certain materials before they were repackaged, was not a “seizure.” A “seizure” is a taking of property. United States v. Lisk, 522 F.2d 228, 230 (7th Cir. 1975). It involves “a forcible or secretive dispossession.” United States v. Haden, 397 F.2d 460, 465 (7th Cir. 1968). The materials herein remained in UPS’s possession and their delivery was unaffected since they were undeliverable. The materials were searched but not seized. Appellant argues that the FBI’s request of UPS to retain the initial package was a seizure. At trial, the FBI" }, { "docid": "5386455", "title": "", "text": "U.S. 825, 94 S.Ct. 128, 38 L.Ed.2d 58 (1973); United States v. Burton, 475 F.2d 469, 471 (8th Cir.), cert. denied, 414 U.S. 835, 94 S.Ct. 178, 38 L.Ed.2d 70 (1973). The initial search of the packages conducted by Mr. Spitznagel is beyond the scope of the exclusionary rule since it has not been established that the UPS search was instigated or assisted by law enforcement officers. Cf. Corngold v. United States, 367 F.2d 1, 4-6 (9th Cir. 1966). Governmental involvement in the instant case, therefore, is limited to the activity of the FBI after first being called by Spitznagel. It must be determined whether the seizure of books and magazines by FBI Agent William McDermott constituted governmental conduct so unreasonable as to necessitate the operation of the exclusionary rule. Warrantless searches or seizures are per se unreasonable unless there are special circumstances which excuse compliance with the Fourth Amendment warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). Agent McDermott testified that an attempt was made at one time to obtain a warrant from the court clerk, but he declined to issue the warrant because he was only an acting magistrate. Since the government concedes that the seizure was conducted without a warrant, the FBI seizure of the books and magazines in the instant case must be considered unreasonable if it does not come within “a few specifically established and well-delineated exceptions” to the Fourth Amendment. Id. The burden is on the government to show the applicability of a legitimate exception to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). Our review of the record compels the conclusion that the government has failed to sustain its burden of establishing a traditional exception to the warrant requirement. The facts do not show a search conducted incident to a valid arrest. Cf. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Although the FBI seizure of the books and magazines was made with the consent of the UPS," }, { "docid": "5386461", "title": "", "text": "Amendment materials should observe traditional constitutional safeguards and allow a judge to focus searchingly on the question of obscenity. The government contends that the seizure of the books by FBI Agent McDer-mott was reasonable, even without a warrant, since only sample copies of the materials were taken from the shipments. We find this distinction untenable, however, and inconsistent with the thrust of recent Supreme Court decisions. See Roaden v. Kentucky, 413 U.S. 496, 501-06, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). A contrary conclusion would reduce First Amendment materials such as books and magazines to lesser rather than greater adherence to the warrant requirement of the Fourth Amendment. See Roaden v. Kentucky, supra, 413 U.S. at 504, 93 S.Ct. 2796. We conclude that the governmental seizure of the books and magazines in the instant case was unreasonable under the Fourth Amendment since the seizure was conducted without first obtaining a warrant. As the Supreme Court stated in Roaden v. Kentucky, supra, 413 U.S. at 506, 93 S.Ct. at 2802: If, as Marcus and Lee Art Theatre held, a warrant for seizing allegedly obscene material may not issue on the mere conclusionary allegations of an officer, a fortiori, the officer may not make such a seizure with no warrant at all. It is clear that exigent circumstances may 'make it reasonable to permit police action without prior judicial evaluation. Roaden v. Kentucky, supra, 413 U.S. at 505, 93 S.Ct. 2796. We, however, are not aware of the existence of any exigent circumstances in the instant case. The FBI had ample opportunity to obtain a valid warrant based on the affidavit of Mr. Spitznagel or Agent McDermott pri- or to the seizure of any books or magazines. This is not a case involving contraband or objects dangerous in themselves. The judgment of the district court is reversed, and this case is remanded for further proceedings not inconsistent with this opinion. Our remánd of the case on the basis of the search and seizure issue renders unnecessary any consideration of appellant’s additional contention that the evidence did not show Kelly’s knowing use of" }, { "docid": "5386457", "title": "", "text": "it is clear that such consent does not satisfy the requirements of the Fourth Amendment. See Stoner v. California, 376 U.S. 483, 488-90, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Moreover, the consignment of materials to a common carrier does not constitute an abandonment of appellant’s interest in the contents of the packages. See Corngold v. United States, 367 F.2d 1, 6-7 (9th Cir. 1966). The record also fails to reveal exigent circumstances, such as the potential destruction of evidence. The materials were entirely within the control of the UPS, and there is no indication that Kelly intended to destroy the materials in question. In fact, it does not appear that Kelly was even aware of the FBI investigation since he continually sought credit from Sovereign News for the missing materials that were seized. See Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1943). To justify the warrantless seizure of the books and magazines, the government principally relies on the “plain view” exception to the general Fourth Amendment warrant requirement. See, e. g., Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The government emphasizes that UPS employee Spitznagel discovered the materials during a damage inspection and that FBI Agent McDermott merely seized books and magazines which were in plain view, sitting on Spitznagel’s desk at the United Parcel Service. It is contended that the materials constituted openly visible contraband or evidence of a crime which could be seized without a warrant. It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. Harris v. United States, supra, 390 U.S. at 236, 88 S.Ct. 992. Because of the nature of the property seized in the instant case, however, the seizure cannot be justified on the basis of the plain view exception. “A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.” Roaden v. Kentucky, 413 U.S. 496, 501-03, 93 S.Ct. 2796, 2800, 37" }, { "docid": "18041147", "title": "", "text": "364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. Moreover, when Burdeau was decided, there were few justifications for warrantless seizures. “The failure of Burdeau to subject the government’s acceptance of privately discovered objects to fourth amendment analysis gave the police a desirable freedom of action. Under current fourth amendment doctrine, the exceptions to the warrant requirement . . . permit the police to take immediate action where their protective and law enforcement duties most demand it.” Note, Private Searches and Seizures, supra, at 469. The Fifth Circuit cases cited by the majority are primarily concerned with whether there was a “separate or additional search ” by the government. See United States v. Blanton, 5 Cir. 1973, 479 F.2d 327, 328 (emphasis added); United States v. Lamar, 5 Cir. 1977, 545 F.2d 488. The majority argues, however, that the introduction into evidence of the fruits of the private search would have been impossible in each of these cases unless the government’s acceptance of the articles turned over by the private parties was implicitly immunized from the fourth amendment. Yet in each of the cases the actual seizure of the items can be justified under traditional exceptions for warrantless seizures. For example, in Lamar, an airport official discovered heroin in a bag left by a passenger at the airport. He showed the contents of the bag to the police. When the passenger reclaimed the bag later that night, he was arrested. The bag could have been taken into possession by the police as an incident to a lawful arrest. In this case, the warrantless seizure cannot be justified under existing exceptions to the warrant clause. The employees of L’Eggs had no authority to consent to the government’s appropriation of the presumptively lawful contents of the package. The seizure cannot be justified under the plain view doctrine. See United States v. Kelly, 8 Cir. 1976, 529 F.2d at 1372-73. There were no exigent circumstances necessitating immediate action. The FBI had ample opportunity to secure a warrant on the basis of an affidavit by either the FBI agents or the employees of L’Eggs." }, { "docid": "22365245", "title": "", "text": "materials offered for sale there did not constitute a search and that the purchase of two magazines did not effect a seizure. We do not decide whether a warrant is required to arrest a suspect on obscenity-related charges, because the magazines at issue were not the product of the warrantless arrest. Because we hold that the magazines were properly admitted in evidence at trial, we also do not address respondent’s contention that the Double Jeopardy Clause bars retrial. II The central issue presented is whether the magazines purchased by the undercover detectives before respondent’s arrest must be suppressed. If the publications were ob tained by means of an unreasonable search or seizure, or were the fruits of an unlawful arrest, the Fourth Amendment requires their exclusion from evidence. If, however, the evidence is not traceable to any Fourth Amendment violation, exclusion is unwarranted. See United States v. Crews, 445 U. S. 463, 472 (1980). A The First Amendment imposes special constraints on searches for and seizures of presumptively protected material, Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326, n. 5 (1979), and requires that the Fourth Amendment be applied with “scrupulous exactitude” in such circumstances. Stanford v. Texas, 379 U. S. 476, 485 (1965). Consequently, the Court has imposed particularized rules applicable to searches for and seizures of allegedly obscene films, books, arid papers. See, e. g., Roaden v. Kentucky, 413 U. S. 496, 497 (1973) (“seizure of allegedly obscene material, contemporaneous with and as an incident to an arrest for the public exhibition of such material . . . may [not] be accomplished without a warrant”); Marcus v. Search Warrant, 367 U. S. 717 (1961) (warrant to seize allegedly obscene magazines must be particularized and may not issue merely on officer’s conclusory assertion). Although we have not previously had an occasion to analyze the question whether a purchase of obscene material is properly classified as a seizure, some prior cases have involved seizures that followed bona fide undercover purchases. See, e. g., Lo-Ji Sales, Inc. v. New York, supra; Marcus v. Search Warrant, supra. In those" }, { "docid": "5386453", "title": "", "text": "denying that the defendant has the requisite interest to challenge admission of the evidence. In the instant case, Kelly has not been charged with a crime in which possession of seized evidence is an essential element. See 18 U.S.C. § 1462 (1970). Kelly has been subjected, however, to a similar form of contradictory assertion of governmental power as that involved in Jones. Appellant has been convicted of the knowing use of an interstate carrier for the transportation of obscene materials. The government has attempted to show that Kelly exercised dominion and control over interstate shipments of purportedly obscene books at the time of their seizure and simultaneously has contended that Kelly does not have a sufficient interest to challenge the search or seizure of the same materials. Proper administration of criminal justice should not include such contradictory assertions of governmental power. See Brown v. United States, supra, 411 U.S. at 228-29, 93 S.Ct. 1565; Jones v. United States, supra, 362 U.S. at 263, 80 S.Ct. 725. For all of the preceding reasons, we conclude that appellant Thomas C. Kelly has the requisite standing to contest the alleged seizure of the books and magazines in question. II. The remaining question is whether the alleged seizure of the books and magazines was unreasonable within the meaning of the Fourth Amendment. The government asserts and appellant concedes that .there was no governmental search since the initial discovery of the packaged materials was the result of a routine damage inspection conducted by United Parcel Service employee Gerald Spitznagel. Individual conduct devoid of governmental involvement is beyond the scope of the exclusionary rule. Burdeau v. McDowell, 256 U.S. 465, 475-76, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); see Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). For example, searches conducted by air carriers generally are not subject to Fourth Amendment protection. See United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391 (1974), cert. denied, 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828 (1975); United States v. Echols, 477 F.2d 37, 39 (8th Cir.), cert. denied, 414" }, { "docid": "11591365", "title": "", "text": "Cir.2000); see United States v. Ruckes, 586 F.3d 713, 716 (9th Cir.2009); United States v. Lang, 149 F.3d 1044, 1048 (9th Cir.1998). III. Discussion The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures — ” U.S. Const, amend. IV. “At [its] very core stands the right of a [person] to retreat into his own home and there be free from unreasonable- governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). “[Searches and seizures inside a home without a warrant are,” therefore, “presumptively unreasonable.” Payton, 445 U.S. at 586, 100 S.Ct. 1371. Evidence derived from an illegal search cannot “constitute proof-against the victim of the search.” Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It is undisputed that the officers seized the two handguns during a warrantless search of Lundin’s home. The handguns are therefore the product of a presumptively unreasonable search. To avoid suppression of the handguns, the government must demonstrate that either an exception to the warrant requirement or an exception to the exclusionary rule applies. The government argues that the warrantless search of Lundin’s home was justified either .due to exigent circumstances or as a protective sweep. In the alternative, the government contends the handguns are admissible under .the inevitable discovery exception to the exclusionary rule. We agree with the district court that these arguments fail. A. Exigent Circumstances Law enforcement .officers may conduct a warrantless search of a home when “the exigencies of the situation make the needs of,law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (alteration in original) (citation .omitted). However, exigent circumstances cannot justify a warrantless search when the police “create the exigency by engaging ... in conduct that violates the. Fourth-Amendment.” Id. at 462, 131 S.Ct. 1849. The officers in .this case had no reason other than . the crashing noises coming" }, { "docid": "17650263", "title": "", "text": "of UPS to detain the initial package constituted an unconstitutional seizure and that all evidence flowing therefrom should have been suppressed, since the direct and indirect products of illegal searches and seizures are evidentially inadmissible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). A series of events led to acquainting the FBI with the package and its contents. First, the broken package’s contents were examined by UPS employees, who then contacted the FBI. It is well settled that independent searches by private citizens are unaffected by Fourth Amendment prohibitions against unreasonable searches and seizures, and that results thereof constitute admissible evidence. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Sherwin, 539 F.2d 1 (9th Cir. 1976); United States v. Kelly, 529 F.2d 1365 (8th Cir. 1976). Next, FBI agents visited the UPS office and examined the package’s contents. The agents were expressly invited onto the premises and were presented with materials previously opened and searched. The circuit courts of appeals are divided on whether an illegal seizure occurs when allegedly obscene materials are uncovered by the common carrier transporting them, and subsequently turned over to law officers. In United States v. Kelly, supra, a UPS manager, while examining a package damaged in transit, discovered printed materials perceived by him to be obscene. An FBI agent was invited to the premises, who inspected the materials and seized several magazines. UPS completed delivery of the remaining materials. No warrant was obtained prior to the material’s seizure. The warrantless seizure was held illegal, with the court commenting: “Although the FBI seizure of the books and magazines was made with the consent of the UPS, it is clear that such consent does not satisfy the requirements of the Fourth Amendment.” at 1371. Only the seizure was condemned. The initial-UPS search was found nonviolative of the defendant’s constitutional rights; and neither the FBI’s warrantless visit to UPS premises nor the agent’s examination of the materials was held illegal. In discussing why a warrant should have been obtained prior to" }, { "docid": "5386456", "title": "", "text": "made at one time to obtain a warrant from the court clerk, but he declined to issue the warrant because he was only an acting magistrate. Since the government concedes that the seizure was conducted without a warrant, the FBI seizure of the books and magazines in the instant case must be considered unreasonable if it does not come within “a few specifically established and well-delineated exceptions” to the Fourth Amendment. Id. The burden is on the government to show the applicability of a legitimate exception to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). Our review of the record compels the conclusion that the government has failed to sustain its burden of establishing a traditional exception to the warrant requirement. The facts do not show a search conducted incident to a valid arrest. Cf. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Although the FBI seizure of the books and magazines was made with the consent of the UPS, it is clear that such consent does not satisfy the requirements of the Fourth Amendment. See Stoner v. California, 376 U.S. 483, 488-90, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Moreover, the consignment of materials to a common carrier does not constitute an abandonment of appellant’s interest in the contents of the packages. See Corngold v. United States, 367 F.2d 1, 6-7 (9th Cir. 1966). The record also fails to reveal exigent circumstances, such as the potential destruction of evidence. The materials were entirely within the control of the UPS, and there is no indication that Kelly intended to destroy the materials in question. In fact, it does not appear that Kelly was even aware of the FBI investigation since he continually sought credit from Sovereign News for the missing materials that were seized. See Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1943). To justify the warrantless seizure of the books and magazines, the government principally relies on the “plain view” exception to the general Fourth Amendment warrant" }, { "docid": "2588869", "title": "", "text": "however, establish the contrary. The uncontradicted evidence is that TWA pursues the policy of taking inventory of apparently pilfered shipments in order to determine the extent of any loss. The search did not lose its private character because TWA chose to wait a reasonable time for the presence of an FBI agent before making the inventory. The agent’s presence was desirable both to assure accuracy of the inventory and to assist in preventing the destruction of any evidence of the theft which might have been discovered during the course of the private inventory. The fourth amendment does not require the FBI to obtain a warrant before entering the premises of a common carrier with the carrier’s consent to observe an inventory conducted because of the carrier’s own policies. See United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391, 398 (1974); United States v. Echols, 477 F.2d 37, 39 (8th Cir.), cert. denied, 414 U.S. 825, 94 S.Ct. 128, 38 L.Ed.2d 58 (1973). Under the circumstances, we hold the search was private and thus did not violate appellant’s fourth amendment rights. As in Kelly, the lawfulness of the warrantless seizure remains as the crucial issue. In Kelly, the court expressly found that no exigent circumstances justified the seizure. 529 F.2d at 1371-1372. The obscene material there was consigned to an established news-stand where it was to be incorporated into inventory. The recipient of the material was unaware of the FBI’s interest in the shipments and was therefore unlikely to destroy or hide the material. Indeed, he felt so secure that he periodically submitted claims to the shipper for shortages caused by the FBI’s seizures of samples from various shipments. By contrast, here a genuine danger existed that the evidence would be destroyed. The recipient, Entringer, did not generally incorporate the shipments which he received into the stock of an established business. Instead, according to appellant’s statement of the facts, he had “on numerous occasions reshipped [such] packages to Guam * * *.” Further, on May 8th, prior to the time that the FBI had any idea that the contents of" }, { "docid": "5386459", "title": "", "text": "L.Ed.2d 757 (1973). The Fourth Amendment should be read in conjunction with the First Amendment, rather than “in a vacuum.” Id. The proper seizure of books and magazines, which are presumptively protected by the First Amendment, demands a greater adherence to the Fourth Amendment warrant requirement. Roaden v. Kentucky, supra, 413 U.S. at 504, 93 S.Ct. 2796; A Quantity of Books v. Kansas, 378 U.S. 205, 212, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Wilhelm v. Turner, 298 F.Supp. 1335, 1337 (S.D.Iowa 1969), aff’d, 431 F.2d 177, 180 (8th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 919, 28 L.Ed.2d 230 (1971). As the Supreme Court stated in Roaden v. Kentucky, supra: The seizure of instruments of a crime, such as a pistol or a knife, or “contraband or stolen goods or objects dangerous in themselves,” are to be distinguished from quantities of books and movie films when a court appraises the reasonableness of the seizure under Fourth or Fourteenth Amendment standards. 413 U.S. at 502, 93 S.Ct. at 2800 (citations omitted). Consequently, in the absence of exigent circumstances in which police must act immediately to preserve evidence of the crime, we deem the warrantless seizure of materials protected by the First Amendment to be unreasonable. See Marcus v. Search Warrant, 367 U.S. 717, 729-38, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Such a seizure without a warrant is unreasonable not because it would be easier to obtain a warrant but because prior restraint of the right to expression demands a more strict evaluation of reasonableness. See Roaden v. Kentucky, supra, 413 U.S. at 504, 93 S.Ct. 2796. For example, in Marcus v. Search Warrant, 367 U.S. 717, 732, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and Lee Art Theatre v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the Supreme Court held that a warrant for the seizure of allegedly obscene material could not be issued on the mere conclu-sionary opinion of a police officer that the material sought to be seized was obscene. In the absence of exigent circumstances, therefore, seizure of First" } ]

[ { "docid": "4478721", "title": "", "text": "began “in or about late 1992, and continufed] through April 1993.” We do not believe that the initial indictment provided Ratcliff with notice that he was actually charged with a thirteen-year-long conspiracy (or two) involving numerous transactions that had occurred long before the dates alleged in that indictment. We find equally unavailing the government’s argument that the charges were not broadened because there was a “continuity of object” between the charges, i.e., all conspiracy charges involved the attempted importation of marijuana, and a continuity of participants between the charged conspiracies. While such considerations are relevant to deciding whether charges have been materially broadened or substantially amended, they are not determinative in this case. As for the continuity of object between the charged conspiracies, we do not agree that once a single drug-smuggling conspiracy is charged, the government is free to come back and argue that the charge encompasses all other drug conspiracies — regardless of the underlying facts or relation to the original charge — simply because the “object” of the conspiracies is the same. In Italiano, we made clear that we do not concern ourselves with the formalities of charges such as the statutes involved or the “objectives of [a] scheme.” Italiano, 894 F.2d at 1285. “[T]he crucial inquiry,” we explained, “is whether approximately the same facts were used as the basis of both indict ments.” Id. In that case, the defendant “implie[d] that the object of the scheme determine[d] the nature of the facts underlying the scheme,” and we disagreed. Id. Similarly, the continuity of participants does not persuade us that the changes to the conspiracy counts against Ratcliff were immaterial or insubstantial. The government contended at oral argument that there was substantial overlap of participants between the drug-smuggling transactions of the 1980s charged in the superseding indictment and the Little Joe episode in 1992-93, which was charged in the initial indictment. It stated that Nu-lisch, Frank Ratcliff, Danny Bosco, and Philip Beaty (none of whom were charged in either indictment) were all involved during both time periods. The degree of overlap in co-conspirators is not as substantial" } ]

[ { "docid": "5675401", "title": "", "text": "strong marijuana odor, and containing marijuana residue, zigzag papers, scales, and green plastic shrink wrap. The officers also seized a number of documents from the file cabinet located in the master bedroom. These documents included receipts and other financial records showing the vast discrepancy between the Garcias’ reported income and their yearly expenditures. The officers also seized two invoices containing co-conspirator Irwin’s name and a map of San Antonio on which an area of the city notorious for drug activity was circled in red. At trial the government introduced approximately twenty documents — including those mentioned above — seized during this search. Garcia and eight others were originally-indicted for a drug distribution conspiracy alleged to have begun in November 1992. A few months later the grand jury returned a superseding indictment that extended the beginning of the conspiracy to September 1992. Garcia pled not guilty, went to trial, and was convicted by a jury. On appeal, a panel of this Court reversed Garcia’s conviction, holding that the jurors who convicted him were selected through a plan that violated the Fifth Amendment Equal Protection Clause. See United States v. Ovalle, 136 F.3d 1092, 1107 (6th Cir.1998). In May 1998, the grand jury returned a second superseding indictment, which restated the charges in the first superseding indictment. A week later the court issued a third superceding indictment, which included possession with intent to distribute heroin and cocaine in addition to marijuana. In 2000, the district court dismissed the third superseding indictment, concluding that the statute of limitations had run and the indictment did not “relate back” because it materially broadened the charges against Garcia. Soon thereafter the grand jury returned a fourth superseding indictment, which was identical to the second superseding indictment except that, in response to the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), it alleged that the conspiracy involved “1,000 kilograms or more of marijuana.” The district court held that the fourth superseding indictment was time-barred because, similar to the third superseding indictment, it impermissibly expanded the charges against" }, { "docid": "8567901", "title": "", "text": "on February 23, 2000, and April 5, 2000. Defendants argue, however, that Counts Two and Three are barred because the June 23, 2005 superceding indictment was brought more than five years after the transfers. Relation-back to the filing date of the original indictment is inappropriate because the superceding indictment “materially broadens the first charging document” by adding new charges of tax fraud, Bank Secrecy Act violations, and forfeiture against both Defendants, and in Grooms’ case, Medicaid and food stamp fraud charges. (Def. Mot. Dismiss at 12). To support their position Defendants cite United States v. Zvi, 168 F.3d 49 (2d Cir.1999), in which the Second Circuit held that numerous money laundering charges first brought in the Government’s second and third superceding indictments did not relate back to an original indictment that charged only wire fraud and conspiracy to commit wire fraud. The court stated in support of its decision, “A superseding indictment will relate back to the date of the original indictment only if the superseding indictment does not ‘broaden or substantially amend the original charges.’ ” Id. at 54 (quoting United States v. Gengo, 808 F.2d 1, 3 (2d Cir.1986)). Defendants pluck this statement out of context, from a case in which the relation-back of new charges was at issue, and apply it to this case, in which the relation-back of nearly identical, pre-existing charges is at issue. Defendants also cite United States v. Ratcliff, 245 F.3d 1246 (11th Cir.2001), in which relation-back of a conspiracy charge was deemed improper because the initial indictment alleged a 4-month drug conspiracy, while the superceding indictment alleged a 13-year conspiracy involving substantially higher drug weights. Ratcliff is inapposite because it involves the relation back of dramatically altered charge. Defendants seek to draw from these cases a principle that none of the charges contained in a superceding indictment can relate back to an original indictment — even if some of the charges in both documents are substantially identical — as long as other charges in the superceding indictment are ineligible for relation-back. In other words, the superceding indictment must relate back fully or" }, { "docid": "14308848", "title": "", "text": "after the return of Indictment S2. On the day Indictment S2 was returned, Indictment SI was facially timely and validly pending. Nothing in the record suggests that the Government deliberately withheld its concession concerning the April 9 overt act until after return of Indictment S2. Whether Indictment S2 impermissibly broadened the charges. Rutkoske next argues that even if Indictment SI was validly pending, Indictment S2 impermissibly broadened the scope of the conspiracy. A superceding indictment containing additional overt acts relates back to a previous indictment when the additional overt acts “simply flesh out or provide more detail about the originally charged crime without materially broadening or amending it.” Salmonese, 352 F.3d at 622. Indictment S2 alleged two new overt acts extending the scope of the conspiracy by one week. This one-week extension cannot be characterized as a material broadening of the charges against Rutkoske. Cf. United States v. Ratcliff, 245 F.3d 1246, 1253-54 (11th Cir.2001) (holding that a superceding indictment could not relate back when it expanded the conspiracy by twelve years and ten conspirators). Rutkoske contends that the one-week extension of the conspiracy was critically important because its purpose was to save the indictment from dismissal. This contention simply restates Rutkoske’s first argument that Indictment SI was not validly pending when Indictment S2 was returned. Since Indictment S2 did not materially broaden the scope of the conspiracy charge, it related back to Indictment SI and was therefore timely. II. Sufficiency of the Evidence At trial, the Government based the conspiracy and securities fraud charges on theories of both failure to disclose brokers’ profits and material misrepresentations. Rutkoske argues that the evidence was insufficient to establish that Lloyd Wade’s brokers had a duty to disclose their profits to their customers. We need not consider this argument because, whether or not the omission theory was proved, the evidence was sufficient to support the misrepresentation theory, and the Supreme Court has held that a verdict should be affirmed when two theories of an offense are submitted to the jury and the evidence supports one theory but not the other. See Griffin v." }, { "docid": "8567900", "title": "", "text": "F.2d 246, 263 (2d Cir.) (mail fraud), cert. denied, 507 U.S. 998, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993); United States v. Gross, 416 F.2d 1205, 1210 (8th Cir.1969) (wire fraud), cert. denied, 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427 (1970). Fraudulent use of the wires or mails is the trigger point because only an unlawful interstate transfer creates federal jurisdiction: In applying the statute of limitations to mail and wire fraud the circuits appear uniformly to focus on the actual mailing and use of the wires.... [N]o court has in any way suggested that the statute of limitations would be satisfied as long as any one element of the offense, e.g., part of the scheme, fell within the period. Requiring that the order-violating conduct consist of the mailing or wiring acknowledges these acts’ role as the source of federal jurisdiction. United States v. Howard, 350 F.3d 125, 128 (D.C.Cir.2003). The original indictment was filed on February 17, 2005, less than five years after the two wire transfers at issue, which allegedly occurred on February 23, 2000, and April 5, 2000. Defendants argue, however, that Counts Two and Three are barred because the June 23, 2005 superceding indictment was brought more than five years after the transfers. Relation-back to the filing date of the original indictment is inappropriate because the superceding indictment “materially broadens the first charging document” by adding new charges of tax fraud, Bank Secrecy Act violations, and forfeiture against both Defendants, and in Grooms’ case, Medicaid and food stamp fraud charges. (Def. Mot. Dismiss at 12). To support their position Defendants cite United States v. Zvi, 168 F.3d 49 (2d Cir.1999), in which the Second Circuit held that numerous money laundering charges first brought in the Government’s second and third superceding indictments did not relate back to an original indictment that charged only wire fraud and conspiracy to commit wire fraud. The court stated in support of its decision, “A superseding indictment will relate back to the date of the original indictment only if the superseding indictment does not ‘broaden or substantially amend the original" }, { "docid": "23155973", "title": "", "text": "168 F.3d 49, 55 (2d Cir.1999). No single factor is determinative; rather, the “touchstone” of our analysis is notice, i.e., whether the original indictment fairly alerted the defendant to the subsequent charges against him and the time period at issue. See United States v. Gengo, 808 F.2d at 3, cf. United States v. Ben Zvi, 168 F.3d at 55 (holding that notice must come in indictment). To the extent Indictment S5 alleges a different time frame for the conspiracy (October 1995 through June 1996) than Indictment S2 (October 1995 through August 1996), the law is clear that there is no obstacle to relation back when a superseding pleading narrows, rather than broadens, the original charges. See United States v. Ben Zvi, 168 F.3d at 54; United States v. Grady, 544 F.2d at 602. Accordingly, we reject this part of Benussi’s challenge without further discussion. This court has not yet ruled on whether the addition of new overt acts to a superseding indictment constitutes a substantial alteration in the original charge so as to preclude relation back. Cf. United States v. Gengo, 808 F.2d at 3 (noting that the issue, although raised in the district court, was not pursued on appeal because the overt acts in question had been dismissed on other grounds). A number of our sister circuits have upheld relation back where additional overt acts simply flesh out or provide more detail about the originally charged crime without materially broadening or amending it. See, e.g., United States v. Pearson, 340 F.3d 459, 465 (7th Cir.2003) (holding that addition of three overt acts of concealment in superseding indictment did not preclude relation back because “the uninterrupted success of the conspiracy turned on defendants’ ability to continuously conceal the truth about the defective batteries from consumers and ... shareholders”); United States v. Lash, 937 F.2d 1077, 1081-82 (6th Cir.1991) (holding that although additional overt acts in superseding indictment supplied “different details” about the operation of the conspiracy, both indictments “described the same conspiracy to defraud investors during the same time frame through the operations” of the same two businesses); see also" }, { "docid": "16600054", "title": "", "text": "changes made to the conspiracy count in the second superceding indictment materially broadened the charge, preventing it from “relating back” to the original indictment, and leaving it time-barred. The second superceding indictment modified the end date of the conspiracy from February 1996 to September 2000 and added three overt acts which occurred during that time. Defendants argue that the three acts- — Hawkins’s preparation of Marks’s false affidavit, his preparation of a phony consulting agreement, and his false testimony about the consulting agreement — were not part of the wire fraud conspiracy and thus expanded the alleged crime. However, “the fact that the ‘central objective’ of the conspiracy has been nominally attained does not preclude the continuance of the conspiracy.” United States v. Hickey, 360 F.2d 127, 141 (7th Cir.1966). Here, the uninterrupted success of the conspiracy turned on defendants’ ability to continuously conceal the truth about the defective batteries from consumers and Exide shareholders. Hawkins’s acts to prop up the scheme were an integral part of the continuing actions of deceit. We find that defendants were on notice of the charges pending against them because “the initial indictment informed appellant[s] in no uncertain terms that [they] would have to account for essentially the same conduct with which [they were] ultimately charged in the superceding indictment,” United States v. O’Bryant, 998 F.2d 21, 24 (1st Cir.1993), and therefore the second su-perceding indictment did not violate the statute of limitations. B. Venue We next examine Pearson and Hawkins’s arguments that venue was not proper in the Southern District of Illinois. We review claims of improper venue to determine “whether the government proved by a preponderance of the evidence that the crimes occurred in the district charged, viewing the evidence in the light most favorable to the government.” United States v. Ochoa, 229 F.3d 631, 636 (7th Cir.2000). Article III of the Constitution stipulates that “the Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed,” § 2, cl. 3, and the Sixth Amendment similarly requires that “[i]n all criminal prosecutions, the accused" }, { "docid": "8567904", "title": "", "text": "is whether specific charges alleged to be time-barred should relate back — not whether the superceding indictment should relate back as a whole: The mere restatement or superficial amendment of the charge in a subsequent indictment does not further prejudice the defendant and thus does not offend the purposes underlying the limitation period.... When the third superseding indictment was returned against [Defendant], twenty of the indictment’s thirty-five counts were still within the five-year limitation period. Regardless of any relation back, these charges clearly were not time barred. As to the fifteen counts that were beyond the limitation period ... each had been timely handed down in either the original or the (first) superseding indictment and realleged in the second superseding indictment.... As explained above, these counts relate back to their original timely filing date so long as they neither materially broadened nor substantially amended the counts in the earlier indictments. Id. at 1537 (emphasis added). Counts Two and Three of the superceding indictment relate back to the date of the original indictment because they are substantially identical to the original wire fraud counts. They are not barred by the statute of limitations. C. Counts Four, Fourteen, and Sixteen The Court declines at this time to rule on Grooms’ motion to dismiss Counts Four and Sixteen, as the parties will address these limitations issues at a January 6, 2006 hearing. As for Count Fourteen, the five-year limitations period prescribed by 18 U.S.C. § 3282 applies to Grooms’ alleged violation of 7 U.S.C. § 2024(b). United States v. Hermis, 980 F.2d 731, 1992 WL 363381 *1 (6th Cir.1992) (unpublished opinion). This charge was first brought on June 23, 2005, more than five years after Grooms allegedly provided false information to the Amherst County Department of Social Services to procure food stamps. Thus, Count Fourteen is time-barred, and shall be dismissed. D. Counts Eight, Nine, Ten, and Eleven — Willful Failure to Report Signature Authority of Foreign Accounts With Balances Exceeding $10,000 Defendants next argue that Counts 8-11 are subject to the three-year statute of limitations of 26 U.S.C. § 6531 rather than" }, { "docid": "14308844", "title": "", "text": "must be “found” within five years after offense committed) . When conspiracy requires proof of an overt act, as in this case, the statute of limitations is satisfied if the Government proves that the conspiracy operated within the five-year period preceding the date of the indictment and that a conspirator knowingly committed an overt act in furtherance of the conspiracy within that same period. See United States v. Salmonese, 352 F.3d 608, 614 (2d Cir.2003). It is well-established that the Government may satisfy this test “ ‘by proof of an overt act not explicitly listed in the indictment, as long as a defendant has had fair and adequate notice of the charge for which he is being tried, and he is not unduly prejudiced by the asserted. variance in the proof.’ ” Id. at 620 (quoting United States v. Frank, 156 F.3d 332, 339 (2d Cir.1998)). This Court’s seminal opinion in United States v. Grady, 544 F.2d 598 (2d Cir.1976), governs the timeliness of a su-perceding indictment filed after the expiration of the statute of limitations. In Grady, the original indictment properly alleged overt acts in furtherance of a conspiracy taking place within the five-year statute of limitations. See id. at 601. A superceding indictment was filed after the limitations period had run. See id. The Court noted that the bringing of the original indictment tolled the statute of limitations “as to the charges contained in that indictment.” Id. It then held: Since the statute stops running with the bringing of the first indictment, a superseding indictment brought at any time while the first indictment is still validly pending, if and only if it does not broaden the charges made in the first indictment, cannot be barred by the statute of limitations. Id. at 601-02 (footnote omitted). Subsequent cases applying Grady have stated that a superceding indictment relates back to “a pending timely indictment” so long as the superceding indictment does not “materially broaden or substantially amend the original charges.” Salmonese, 352 F.3d at 622 (emphasis added); accord United States v. Ben Zvi, 242 F.3d 89, 98 (2d Cir.2001). Thus," }, { "docid": "14308847", "title": "", "text": "the Government proceeded to trial on Indictment SI and failed to prove that the alleged April 9 overt act occurred within the limitations period, it could nonetheless have satisfied the statute of limitations by proving another overt act within the limitations period, even though the other act was not alleged in the indictment. See Salmonese, 352 F.3d at 620; Frank, 156 F.3d at 339. Since failure to prove the April 9 overt act at trial would not have rendered Indictment SI dismissable as long as a timely act, although uncharged, was proved, it is arguable that the Government’s concession in advance of trial should not matter, regardless of when the concession was made. See United States v. Smith, 197 F.3d 225, 228-29 (6th Cir. 1999) (“[A]n original indictment remains pending until it is dismissed or until double jeopardy or due process would prohibit prosecution under it.”)- Whether or not that would be so, we see no basis to deem Indictment SI untimely on the facts of this case where the concession did not occur until after the return of Indictment S2. On the day Indictment S2 was returned, Indictment SI was facially timely and validly pending. Nothing in the record suggests that the Government deliberately withheld its concession concerning the April 9 overt act until after return of Indictment S2. Whether Indictment S2 impermissibly broadened the charges. Rutkoske next argues that even if Indictment SI was validly pending, Indictment S2 impermissibly broadened the scope of the conspiracy. A superceding indictment containing additional overt acts relates back to a previous indictment when the additional overt acts “simply flesh out or provide more detail about the originally charged crime without materially broadening or amending it.” Salmonese, 352 F.3d at 622. Indictment S2 alleged two new overt acts extending the scope of the conspiracy by one week. This one-week extension cannot be characterized as a material broadening of the charges against Rutkoske. Cf. United States v. Ratcliff, 245 F.3d 1246, 1253-54 (11th Cir.2001) (holding that a superceding indictment could not relate back when it expanded the conspiracy by twelve years and ten conspirators)." }, { "docid": "5620542", "title": "", "text": "See United States v. Grady, 544 F.2d 598, 601 (2d. Cir.1976). A superseding indictment will relate back to the date of the original indictment only if the superseding indictment does not “broaden or substantially amend the original charges.” United States v. Gengo, 808 F.2d 1, 3 (2d Cir.1986); see also Grady, 544 F.2d at 601-02. Superseding indictments have been deemed timely when they simply added detail to the original charges, narrowed rather than broadened the charges, contained amendments as to form but not substance, or were otherwise trivial or innocuous. See Gengo, 808 F.2d at 3-4 (relation back where superseding indictment does not present new factual allegations or require defendant to prepare new evidence or defenses); Grady, 544 F.2d at 602 (relation back where superseding indictment narrowed, rather than broadened, charges). The government contends that the money laundering counts added in the superseding indictments in this case did not broaden or substantially amend the original indictment because money laundering was part and parcel of the scheme to defraud Lloyd’s. We disagree. While money laundering may have been a part of the scheme to defraud, the sixteen counts of money laundering added by the superseding indictments required the defendants to defend against additional charges that alleged violations of a different statute, contained different elements, relied on different evidence, and exposed the defendants to a potentially much greater sentence. See United States Sentencing Guidelines §§ 2Fl.l(a), 2Sl.l(a). Indeed, Roz Ben Zvi received a sentence of ten years’ imprisonment on each of the money laundering counts, and only five years’ imprisonment on each of the other counts. These changes cannot be characterized as either trivial or innocuous. The government points to the Gengo court’s statement that “notice is the touchstone in deciding whether a superseding indictment substantially changes the original charges,” 808 F.2d at 3, and argues that the superseding indictments here were timely because the government had previously informed the Zvis that it intended to prosecute them for money laundering. This argument must fail. It is the “timely, pending indictment [that] serves this doctrine by apprising a defendant ‘that [he] will be" }, { "docid": "5620541", "title": "", "text": "the credibility of witnesses and drew legal conclusions; and (10) the district court abused its discretion in denying Luiz Ben Zvi’s motion to sever. Some of these arguments require extended discussion; others do not. We will address each in turn. A. Statute of Limitations Defendants contend that all of the money laundering counts for which Luiz Ben Zvi was convicted, as well as Roz Ben Zvi’s convictions based on the July 28, November 11, and November 21, 1988 funds transfers, were time-barred, because the superseding indictments first alleging these counts were filed more than five years (for Luiz Ben Zvi) and five years and three months (for Roz Ben Zvi) after the transfers occurred, in violation of 18 U.S.C. § 3282. The district court agreed with the government’s argument that the superseding indictments related back to the filing date of the original indictment for the purposes of the statute of limitations, ruling that none of these counts was time-barred. The filing of an indictment tolls the limitations period for the charges contained in that indictment. See United States v. Grady, 544 F.2d 598, 601 (2d. Cir.1976). A superseding indictment will relate back to the date of the original indictment only if the superseding indictment does not “broaden or substantially amend the original charges.” United States v. Gengo, 808 F.2d 1, 3 (2d Cir.1986); see also Grady, 544 F.2d at 601-02. Superseding indictments have been deemed timely when they simply added detail to the original charges, narrowed rather than broadened the charges, contained amendments as to form but not substance, or were otherwise trivial or innocuous. See Gengo, 808 F.2d at 3-4 (relation back where superseding indictment does not present new factual allegations or require defendant to prepare new evidence or defenses); Grady, 544 F.2d at 602 (relation back where superseding indictment narrowed, rather than broadened, charges). The government contends that the money laundering counts added in the superseding indictments in this case did not broaden or substantially amend the original indictment because money laundering was part and parcel of the scheme to defraud Lloyd’s. We disagree. While money laundering may" }, { "docid": "8567920", "title": "", "text": "charges of misapplication of bank funds related to defendant’s status as bank president, and money laundering charges relating to defendant’s status as principal in partnership, even though both offenses had as their goal the defendant’s personal enrichment and were accomplished through fraudulent representations and defrauding others of money). The Court agrees that Counts Four and Sixteen were improperly joined. The appropriate remedy is to sever these counts. See 1A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 145 (3d ed.1999) (collecting cases). CONCLUSION Count Fourteen is time-barred, and shall be dismissed in an appropriate order to follow. The Court declines to rule on dismissal of Counts Four and Sixteen at this time, but does agree that they were misjoined and should be severed. None of Defendants’ other arguments in favor of dismissing various counts of the indictment has merit, and will be denied. It is so ORDERED. The Clerk of the Court is hereby directed to send a copy of this Opinion to all counsel of record. . Paragraph 9 of the Introduction to the superceding indictment alleges that some of the money was also transferred to offshore accounts before reaching the Minnesota account. . Grooms filed a separate motion requesting severance as the remedy for improper joinder of Counts 4 and 14, but neglected to assert the improper joinder of Count 16, which is a forfeiture count arising out of the violations alleged in these Counts. . The parties agree that the applicable limitations period is five years under 18 U.S.C. § 3282. . Because the Court finds that the indictment's allegation of ongoing conspiracy lasting until 2004 disposes of Defendants' limitations argument, it need not address whether Count One as amended would relate-back to the original indictment. . Defendants also argue that the superceding indictment \"materially broadens\" Counts Two and Three, because it \"contains a new Introduction that is expressly incorporated into the wire fraud counts” which includes allegations of \"complex financial transactions in the Caribbean and international wire transfers.\" (Def. Mot. Dismiss at 13). However, Counts Two and Three are substantially identical in" }, { "docid": "16600051", "title": "", "text": "included a wire-fraud count for the wiring of money on January 31, 1996, was filed January 19, 2001, within the five-year statute of limitations. See 18 U.S.C. § 3282. Subsequently, a first superceding indictment was returned on March 22, 2001, and a second superceding indictment was returned July 19, 2001. Although only the original indictment was filed within the five-year limit, “a superceding indictment that supplants a still-pending original indictment relates back to the original indictment’s filing date so long as it neither materially broadens nor substantially amends the charges initially brought against the defendant.” United States v. Ross, 77 F.3d 1525, 1537 (7th Cir.1996). Defendants have two statute of limitations complaints about the indictments: the original indictment was filed under seal and the later indictments do not relate back to the original indictment. We first address defendants’ concern that the original indictment was sealed. Defendants argue that despite the fact that filing an indictment within the statute of limitations period tolls the running of the statute of limitations, it should not have been tolled in this case because the original indictment was filed under seal. Federal Rule of Criminal Procedure 6(e)(4) provides that a court “may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial.” Rule 6 does not require the statute of limitations analysis to be altered when an indictment is sealed, and we see no reason why, in a case such as this where an open indictment was filed only two months later, the statute of limitations should continue to run after a sealed indictment has been returned. See United States v. Thompson, 287 F.3d 1244, 1251 (10th Cir.2002); United States v. Edwards, 777 F.2d 644, 647 (11th Cir.1985); United States v. Watson, 599 F.2d 1149, 1154 (2d Cir.1979). Hawkins also complains that because the original indictment has remained under seal, his counsel has never been able to determine whether the first superceding indictment relates back to the original indictment. The district court conducted an in camera comparison of the original indictment to the first superceding indictment" }, { "docid": "16600050", "title": "", "text": "convicted Hawkins and Pearson on both counts. Hawkins was sentenced to 120 months’ imprisonment, a three-year term of supervised release, and a fine of $1 million, while Pearson received a sentence of 64 months’ imprisonment, a two-year term of supervised release, and a fine of $150,000. Defendants appeal. II. ANALYSIS Hawkins and Pearson have taken a kitchen-sink approach to their appeal, filing separate briefs (with voluminous appendices) and together raising over a dozen distinct issues, each with their own sub-contentions. Neither challenges the sufficiency of the evidence to support then-conviction. In the face of the avalanche of issues they have raised, we will focus here on defendants’ most substantive contentions. A. Superceding Indictment Defendants first argue they were tried under a second superceding indictment that, because it was returned outside the statute of limitations period and did not relate back to the original indictment, was time-barred. We review the district court’s ruling regarding the statute of limitations de novo. United States v. Anderson, 188 F.3d 886, 888 (7th Cir.1999). The original indictment against defendants, which included a wire-fraud count for the wiring of money on January 31, 1996, was filed January 19, 2001, within the five-year statute of limitations. See 18 U.S.C. § 3282. Subsequently, a first superceding indictment was returned on March 22, 2001, and a second superceding indictment was returned July 19, 2001. Although only the original indictment was filed within the five-year limit, “a superceding indictment that supplants a still-pending original indictment relates back to the original indictment’s filing date so long as it neither materially broadens nor substantially amends the charges initially brought against the defendant.” United States v. Ross, 77 F.3d 1525, 1537 (7th Cir.1996). Defendants have two statute of limitations complaints about the indictments: the original indictment was filed under seal and the later indictments do not relate back to the original indictment. We first address defendants’ concern that the original indictment was sealed. Defendants argue that despite the fact that filing an indictment within the statute of limitations period tolls the running of the statute of limitations, it should not have been tolled" }, { "docid": "8567902", "title": "", "text": "charges.’ ” Id. at 54 (quoting United States v. Gengo, 808 F.2d 1, 3 (2d Cir.1986)). Defendants pluck this statement out of context, from a case in which the relation-back of new charges was at issue, and apply it to this case, in which the relation-back of nearly identical, pre-existing charges is at issue. Defendants also cite United States v. Ratcliff, 245 F.3d 1246 (11th Cir.2001), in which relation-back of a conspiracy charge was deemed improper because the initial indictment alleged a 4-month drug conspiracy, while the superceding indictment alleged a 13-year conspiracy involving substantially higher drug weights. Ratcliff is inapposite because it involves the relation back of dramatically altered charge. Defendants seek to draw from these cases a principle that none of the charges contained in a superceding indictment can relate back to an original indictment — even if some of the charges in both documents are substantially identical — as long as other charges in the superceding indictment are ineligible for relation-back. In other words, the superceding indictment must relate back fully or not at all. Defendants cite no case that supports this principle. Defendants’ position is untenable in light of the policy reasons underlying statutes of limitations and the relation-back principle. Statutes of limitations “protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time” and encourage “law enforcement officials promptly to investigate suspected criminal activity.” Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). The core concern underlying statutes of limitation is providing defendants with timely notice that they “will be called to account for their activities and should prepare a defense.” United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976). Relation-back comports with this concern because the effect of providing notice through the initial indictment is not reduced if charges in a superceding indictment are substantially the same. See United States v. Gigante, 982 F.Supp. 140, 155 (E.D.N.Y.1997). Therefore, as the Seventh Circuit recognized in United States v. Ross, 77 F.3d 1525 (7th Cir.1996), the relevant question" }, { "docid": "23155972", "title": "", "text": "conspiracy and different overt acts within the limitations period. We review this question of law de novo. See United States v. Yousef, 327 F.3d 56, 137 (2d Cir.2003). “It is black letter law that ‘[o]nce an indictment is brought, the statute of limitations is tolled as to the charges contained in that indictment.’ ” United States v. Ben Zvi, 242 F.3d at 98 (quoting United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976)); accord United States v. Gengo, 808 F.2d 1, 3 (2d Cir.1986). Further, a superseding indictment that supplants a pending timely indictment relates back to the original pleading and inherits its timeliness as long as the later indictment does not materially broaden or substantially amend the original charges. See Gengo, 808 F.2d at 3. In determining whether a superseding indictment materially broadens or amends the original charges, we will consider whether the additional pleadings allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence. See United States v. Ben Zvi, 168 F.3d 49, 55 (2d Cir.1999). No single factor is determinative; rather, the “touchstone” of our analysis is notice, i.e., whether the original indictment fairly alerted the defendant to the subsequent charges against him and the time period at issue. See United States v. Gengo, 808 F.2d at 3, cf. United States v. Ben Zvi, 168 F.3d at 55 (holding that notice must come in indictment). To the extent Indictment S5 alleges a different time frame for the conspiracy (October 1995 through June 1996) than Indictment S2 (October 1995 through August 1996), the law is clear that there is no obstacle to relation back when a superseding pleading narrows, rather than broadens, the original charges. See United States v. Ben Zvi, 168 F.3d at 54; United States v. Grady, 544 F.2d at 602. Accordingly, we reject this part of Benussi’s challenge without further discussion. This court has not yet ruled on whether the addition of new overt acts to a superseding indictment constitutes a substantial alteration in the original charge so as to preclude relation" }, { "docid": "8567903", "title": "", "text": "not at all. Defendants cite no case that supports this principle. Defendants’ position is untenable in light of the policy reasons underlying statutes of limitations and the relation-back principle. Statutes of limitations “protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time” and encourage “law enforcement officials promptly to investigate suspected criminal activity.” Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). The core concern underlying statutes of limitation is providing defendants with timely notice that they “will be called to account for their activities and should prepare a defense.” United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976). Relation-back comports with this concern because the effect of providing notice through the initial indictment is not reduced if charges in a superceding indictment are substantially the same. See United States v. Gigante, 982 F.Supp. 140, 155 (E.D.N.Y.1997). Therefore, as the Seventh Circuit recognized in United States v. Ross, 77 F.3d 1525 (7th Cir.1996), the relevant question is whether specific charges alleged to be time-barred should relate back — not whether the superceding indictment should relate back as a whole: The mere restatement or superficial amendment of the charge in a subsequent indictment does not further prejudice the defendant and thus does not offend the purposes underlying the limitation period.... When the third superseding indictment was returned against [Defendant], twenty of the indictment’s thirty-five counts were still within the five-year limitation period. Regardless of any relation back, these charges clearly were not time barred. As to the fifteen counts that were beyond the limitation period ... each had been timely handed down in either the original or the (first) superseding indictment and realleged in the second superseding indictment.... As explained above, these counts relate back to their original timely filing date so long as they neither materially broadened nor substantially amended the counts in the earlier indictments. Id. at 1537 (emphasis added). Counts Two and Three of the superceding indictment relate back to the date of the original indictment because they are" }, { "docid": "14308845", "title": "", "text": "limitations. In Grady, the original indictment properly alleged overt acts in furtherance of a conspiracy taking place within the five-year statute of limitations. See id. at 601. A superceding indictment was filed after the limitations period had run. See id. The Court noted that the bringing of the original indictment tolled the statute of limitations “as to the charges contained in that indictment.” Id. It then held: Since the statute stops running with the bringing of the first indictment, a superseding indictment brought at any time while the first indictment is still validly pending, if and only if it does not broaden the charges made in the first indictment, cannot be barred by the statute of limitations. Id. at 601-02 (footnote omitted). Subsequent cases applying Grady have stated that a superceding indictment relates back to “a pending timely indictment” so long as the superceding indictment does not “materially broaden or substantially amend the original charges.” Salmonese, 352 F.3d at 622 (emphasis added); accord United States v. Ben Zvi, 242 F.3d 89, 98 (2d Cir.2001). Thus, Grady and its progeny impose a two-part test for relation back of a superceding indictment: the original indictment must be validly pending, and the superceding indictment must not materially broaden or substantially amend the charges. Rutkoske contends that the indictments fail both prongs of this test. Whether Indictment Si was validly pending. Rutkoske first contends that Indictment SI was not validly pending because it was untimely. The premise of this argument, not previously considered in this Circuit, is that an indictment that is facially valid only because of one alleged overt act within the limitations period should not be considered to have been validly pending under Grady when the Government concedes that the overt act did not occur within the limitations period. There can be no doubt that Indictment SI was facially timely when returned. It alleged a conspiracy that extended into the limitations period and an overt act occurring within that period, unlike the initial indictment in Ben Zvi, 242 F.3d at 97, which alleged no overt acts within the limitations period. Furthermore, had" }, { "docid": "23155974", "title": "", "text": "back. Cf. United States v. Gengo, 808 F.2d at 3 (noting that the issue, although raised in the district court, was not pursued on appeal because the overt acts in question had been dismissed on other grounds). A number of our sister circuits have upheld relation back where additional overt acts simply flesh out or provide more detail about the originally charged crime without materially broadening or amending it. See, e.g., United States v. Pearson, 340 F.3d 459, 465 (7th Cir.2003) (holding that addition of three overt acts of concealment in superseding indictment did not preclude relation back because “the uninterrupted success of the conspiracy turned on defendants’ ability to continuously conceal the truth about the defective batteries from consumers and ... shareholders”); United States v. Lash, 937 F.2d 1077, 1081-82 (6th Cir.1991) (holding that although additional overt acts in superseding indictment supplied “different details” about the operation of the conspiracy, both indictments “described the same conspiracy to defraud investors during the same time frame through the operations” of the same two businesses); see also United States v. O’Bryant, 998 F.2d 21, 24-25 (1st Cir.1993) (holding that superseding indictment containing “more detail in terms of overt acts” than original pleading, nevertheless related back because “the initial indictment informed appellant in no uncertain terms that he would have to account for essentially the same conduct with which he was ultimately charged in the superseding indictment”). We adopt this approach and hold that the same standard of review applies to overt acts as to any other aspect of a superseding pleading, i.e., whether the new acts materially broaden or substantially amend the original pleading. See United States v. Ben Zvi, 242 F.3d at 98. Applying that standard to this case, we conclude that the overt acts added in Indictment S5 — all relating to Pasciuto’s sale of warrants out of the Feehan account in May and June 1996 — did not materially broaden or substantially amend the conspiracy charged in Indictment S2. Both S2 and S5 alleged the identical economically motivated conspiracy to commit fraud and bribery in order to strip warrants" }, { "docid": "8567921", "title": "", "text": "the Introduction to the superceding indictment alleges that some of the money was also transferred to offshore accounts before reaching the Minnesota account. . Grooms filed a separate motion requesting severance as the remedy for improper joinder of Counts 4 and 14, but neglected to assert the improper joinder of Count 16, which is a forfeiture count arising out of the violations alleged in these Counts. . The parties agree that the applicable limitations period is five years under 18 U.S.C. § 3282. . Because the Court finds that the indictment's allegation of ongoing conspiracy lasting until 2004 disposes of Defendants' limitations argument, it need not address whether Count One as amended would relate-back to the original indictment. . Defendants also argue that the superceding indictment \"materially broadens\" Counts Two and Three, because it \"contains a new Introduction that is expressly incorporated into the wire fraud counts” which includes allegations of \"complex financial transactions in the Caribbean and international wire transfers.\" (Def. Mot. Dismiss at 13). However, Counts Two and Three are substantially identical in the two indictments. The new factual allegations in the Introduction to the superceding indictment did nothing to alter the substance of the allegations in Counts Two and Three, which, according to Defendants’ own limitations argument, charge discrete fraudulent transfers between domestic banks on specific dates. . The following arguments appear in a special “Reply Brief” filed at the request of the Court by Lowry on December 28, 2005, and have not been expressly adopted by Grooms. . An amendment that became effective October 21, 2001 inserted \"or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism” before the period at the end. . See 31 C.F.R. § 103.27(d). . In the alternative, the indictment provides that if the property is unrecoverable for a variety of reasons as a result of an act or omission by Defendants, the United States shall seek forfeiture of any other of their property to satisfy the Judgment pursuant to 21 U.S.C. § 853(p). . This statute provides in pertinent part: If two or more" } ]

[ { "docid": "22782386", "title": "", "text": "shall be able to pursue those lands into the hands of the wrongdoer, and hold them for the payment of that claim which, but for the wrongdoings of. the Omaha Company, would have-been paid by the Portage Company, partially at least, out of their proceeds. While no express trust is affirmed as to the lands, yet it is familiar doctrine that a party who acquires title to property wrongfully may be adjudged a trustee ex maleficio in respect to that property. In Pomeroy Eq. Jur. § 155, the author says, citing many cases: “If one party obtains the legal title to property, not only by fraud or by violation of confidence or of fiduciary relations, but in any other unconscicntious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to.it, and who is .considered in equity as the beneficial owner.” And again, iri section 1053 : “In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances which render it uncon-scientious for the holder of the legal'title to retain and enjoy the beneficial interest, equity impress.es a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein ; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principle is" } ]

[ { "docid": "16443836", "title": "", "text": "to treat the pledged collateral as though such a provision had been made. The defendant in that case, unlike defendants in the case at bar, was an express trustee for the benefit of the debenture holders; in such a situation, the beneficiaries clearly have a right of action against the trustee for the violation of its fiduciary duty to them. Plaintiff and cross-plaintiff also seek to charge defendants as constructive trustees on the theory that receipt of property with knowledge that the transfer is in violation of a contractual obligation creates a liability in equity in favor of the obligee. But the cases do not support this broad proposition. Angle v. Chicago, St. Paul, etc., Ry. Co., 151 U. S. 1, 25, 14 S. Ct. 240, 38 L. Ed. 55 (1894.) is not in point. All that it holds is that where A, by fraudulent means, induces B to break his contract with C, as a result of which A obtains property which would otherwise have gone to C, A holds that property in constructive trust for C. No such case is before me; defendants are charged neither with actual fraud nor with inducing a breach of contract. The other cases cited on this point illustrate the principle, already noted in relation to the doctrine of equitable servitudes, that one having a contract right which is specifically enforceable against the promisor because recognized in equity as unique may secure specific enforcement thereof against a transferee of the property, taking with notice of the contract relating thereto. The contention that the banks are constructive trustees, .when narrowed to the principle of these cases, is essentially the same as the contention that the debenture covenants created “something in the nature of an equitable servitude”; and both are but corollaries of the fourth, and principal, theory of liability. 8. The premise of this fourth proposition, as hereinabove stated, is that the debenture holders had a right to enjoin both the making and the renewal of each loan and the pledging and the retention of the collateral, because such act would involve breaches of" }, { "docid": "22203552", "title": "", "text": "funds withdrawn from an account containing embezzled money were used to acquire the trust property. Cf. RESTATEMENT OF THE LAW OF RESTITUTION § 160, Comment i (1937) (“A constructive trust does not arise unless there is property on which the constructive trust can be fastened, and such property is held by the person to be charged as constructive trustee.”). Clearly, a thief, having stolen money, may be treated as a trustee of the proceeds and also of any property into which they have been transformed, so long as either may be identified. Where, however, the specific proceeds, in their original or transformed shape may not be traced, there is nothing to which a constructive trust may attach. The controlling factor in every case is whether the property of the claimant can be traced into some fund or other property that is before the court. The constructive trust conceived by defendants, i.e., one that retroactively validates prepetition transfers of unidentifiable funds, would operate not against the fraudulent debtors, but against other equally innocent investors. Cf. Fagan v. Whidden, 57 F.2d 631, 632 (5th Cir.1932). A constructive trust is an equitable restitutionary remedy. It is imposed by a court of equity when retention of the property by a defendant would result in his unjust enrichment. The term “constructive trust” simply connotes a method of preventing unjust enrichment, whereby a court of equity construes a particular situation as if the property were held by the defendant in trust for the plaintiff, with the sole trust obligation being to convey the property to the plaintiff. Even if fraud on the part of the debtors would have given defendants the right to rescind their contracts, trace their deposits, and impress a constructive trust upon them, that is not what occurred. The defendants did not rescind their contracts but accepted monthly payments in accordance with the express terms thereof. When we stop to consider the injustice that would result if a constructive trust were erected in the manner urged by defendants, we instantly see that a court of equity would never sanction such an act. If" }, { "docid": "16443850", "title": "", "text": "per se create any equitable right in the debenture holders to the securities pledged to General Electric as collateral to its loan, even though the loan was knowingly made in violation of the company’s contractual duty to the debenture holders. The contention of plaintiff and cross-plaintiff, therefore,- goes further than any of the cases cited, unless it be that of Meyer v. Washington Times Co., supra, in which, however, the element of uniqueness was involved. They seek to have the -court create a liability in equity, based on a knowing participation in, though not the inducing of a breach of contract when, for that breach, the remedy at law against the promisor is inadequate, because of its insolvency, actual or highly probable. Such noninducing interference or participation by the third party is not actionable at law as a tort. Sweeney v. Smith, 167 F. 385 (C. C. E. D. Pa. 1909), affirmed, 171 F. 645 (C. C. A. 3d 1909), certiorari denied 215 U. S. 600, 30 S. Ct. 400, 54 L. Ed. 343; Lamport v. 4175 Broadway, Inc., 6 F. Supp. 923 (D. C. S. D. N. Y. 1934). It is urged, however, that equity is not restricted by the principles of the tort action; that intentional interference with another’s contractual rights, without justification therefor, is a moral wrong, and, therefore, unless there are countervailing equitable considerations, equity should grant relief even though in so doing it establishes a higher standard of fair dealing toward strangers than has been recognized in actions at law. Appealing as is the argument, T am not called upon to determine its validity in this case, because, unlike the Meyer Case, I find on this record that neither Swope nor Young, the two officers of General Electric who negotiated the loan, had actual knowledge that there were restrictive covenants in the debentures. Indeed, though Swope knew that there were outstanding debentures, it is not established that Young had even this knowledge prior to the consummation -of the loan. There was, therefore, no intentional interference by General Electric with the debenture holders’ contractual rights. I" }, { "docid": "16443837", "title": "", "text": "trust for C. No such case is before me; defendants are charged neither with actual fraud nor with inducing a breach of contract. The other cases cited on this point illustrate the principle, already noted in relation to the doctrine of equitable servitudes, that one having a contract right which is specifically enforceable against the promisor because recognized in equity as unique may secure specific enforcement thereof against a transferee of the property, taking with notice of the contract relating thereto. The contention that the banks are constructive trustees, .when narrowed to the principle of these cases, is essentially the same as the contention that the debenture covenants created “something in the nature of an equitable servitude”; and both are but corollaries of the fourth, and principal, theory of liability. 8. The premise of this fourth proposition, as hereinabove stated, is that the debenture holders had a right to enjoin both the making and the renewal of each loan and the pledging and the retention of the collateral, because such act would involve breaches of both clauses; ■ the conclusion sought to be drawn therefrom, is that the debenture holders, after such a breach of either covenant, acquired something in the nature of an equitable lien on the wrongfully pledged certificates of stock, enforceable against the defendants, on the assumption that they had knowledge of or are chargeable with notice of the debenture holders’ rights. The fundamental question to be considered in this connection is whether the acceleration provision in the debentures gave the holders thereof such an adequate remedy at law for breach of the covenants as to preclude equitable jurisdiction. Although in a few cases there are statements to the contrary (Donnell v. Bennett, 22 Ch. Div. 835 (1883); American Sand & Gravel Co. v. Chicago Gravel Co., 184 Ill. App. 509 (1914); Van Sant v. Rose, supra; but cf. Brand v. Svenson, 170 Ill. App. 54 (1912), .the general rule is that an injunction against breach of a negative covenant will not issue unless the remedy therefor at law is inadequate. Cf. Javierre v. Central Altagracia, 217" }, { "docid": "2553029", "title": "", "text": "the same allegations of fact might support either a derivative suit or an individual cause of action by shareholders.” Id. The allegations in the second amended complaint may be interpreted as a derivative action brought by plaintiffs against the defendants in the second group. The Court holds, however, that the alleged facts also create a claim for relief in the Bank (and, therefore, its liquidators) which it may pursue directly through an action against non-BFP owners of stock in assets of its subsidiaries. Cf. In re Penn Central Securities Litigation, 335 F.Supp. 1026 (E.D.Pa.1971). This claim for relief, through a constructive trust action, arises from the contention that these defendants acquired the Am. Nat’l and Citizens stock from the defendants in the first group who themselves had obtained the stock in breach of their fiduciary duties. A constructive trust is a remedy which equity affords in order to effect justice. It arises through operation of law. “Where one through fraud, abuse of confidence, or other questionable means gains property which in equity or good conscience he should not be permitted to retain, equity will raise a constructive trust.” Hallam v. Gladman, 132 So.2d 198 (2d Fla.App.1961). A constructive trust is merely a tool of the Court to work out an equitable result in the simplest fashion; it is a “fraud-rectifying” trust and not an “intentenforcing” trust. Costigan, The Classification of Trusts as Express, Resulting, and Constructive, 27 Harv.L.Rev. 437 (1914); see Bogert, Trusts & Trustees, § 471, p. 6 (1960). Where a corporate officer in violation of an obligation to acquire property for the benefit of the corporation, purchases it as an individual, he becomes a trustee for the corporation with respect to that property. News-Journal Corp. v. Gore, 147 Fla. 217, 2 So.2d 741 (1941). Thus, the officers and directors of B-A Bank, who allegedly acquired the stocks in Am. Nat’l and Citizens did so as constructive trustees for Bancorp, their rightful owner. By allegedly purchasing this stock with knowledge of these facts, the defendants in the second group would also have become constructive trustees for Bancorp. By suing" }, { "docid": "23217643", "title": "", "text": "or even to a transfer of a definite fund, but to two assignments of $35,000, — to be made out of money or property in the hands of a trustee. It is claimed that this was an assignment of a chose in action within the meaning of § 24 of the Judicial Code. Giving the words of the statute the most extensive construction authorized by previous decisions, they can only refer to a chose in action based on contract. Kolze v. Hoadley, 200 U. S. 76, 83. The restriction on jurisdiction is limited to cases where A is indebted to B on an express or implied promise to pay; B assigns this debt or claim to C, and C as assignee of such debt sues A thereon or to foreclose the security. Or where A has contracted with B and B assigns the contract to C who sues to enforce his rights, by Bill for specific performance or, by an action for damages for breach of the contract. Shoecraft v. Bloxham, 124 U. S. 730, 735. But here there was no contract and this is not a suit for a breach of a contract. For whatever may have been the earlier view of the subject (Holmes Common Law, 407, 409) the modern cases do not treat the relation between Trustee and cestui que trust as contractual. The rights of the beneficiary here depended not upon an agreement between him and Braker, but upon the terms of the will creating the trust and the duty which.the law imposed upon the Trustee because of his fiduciary position. And a proceeding by the beneficiary or his assignee for the enforcement of rights in and to the property, held — not in opposition to but — for the benefit of the beneficiary, could not be treated as a suit on a contract, or as a suit' for the recovery of the contents of a chose in action, or as a suit on a chose in action. Upham v. Draper, 157 Massachusetts, 292; Herrick v. Snow, 94 Maine, 310. See also Edwards v. Bates, 7" }, { "docid": "16443833", "title": "", "text": "part, cases involving the right to specific performance against transferees of property who took with knowledge that the transferor thereof was under obligation to convey the property to or use it for the benefit of another. The reasoning on which such relief is granted is that the right to ■ specific performance of a contract, because of inadequacy of the remedy at law, is ,an equitable right in the property to which the contract relates, a right which is not cut off by a transfer of the property to a third party who has notice of the promisee's equity. As so limited, the contention that the covenants create “something in the nature of an equitable servitude” is but a corollary of the fourth proposition, that the debenture holders had a right to enjoin I. U. I. from borrowing from and pledging collateral to defendants, and that they therefore now have an equitable interest in the wrongfully pledged stock, enforceable against defendants, assuming that the latter took the collateral with knowledge of the contract. The right to enjoin a breach of a negative covenant and the right to specific performance of an affirmative promise are but two incidents of one basic right, enforceable in equity, that to performance of a contract, for the breach of which an action at law for damages would be an inadequate remedy. Therefore, the applicability to the situation now before the court of the cases cited in support of both propositions, i. e., that the right to specific performance of an affirmative promise and the right to enjoin breach of a negative covenant, create equitable interests in the property to which they relate, may best be considered together in relation to the fourth theory of liability. 7. Analogies from the law of trusts, upon which plaintiff and cross-plaintiff also rely, do not advance their cause. The argument is made that, because no trust indenture was executed in connection with the debentures, the company itself is in the position of a trustee for the debentureholders. The cases cited do not support this novel theory. There was no" }, { "docid": "16443849", "title": "", "text": "to C’s right against B. The process of the court is invoked against A to prevent nullification of its decree against B; C has no independent right against A enforceable in equity unless A is threatening to commit a tort by inducing B to break his contract. On the other hand, a decree against A which overturns an executed transaction and which would, as in the present case, occasion present loss to A, must be based, on the theory that A is under some direct obligation to C enforceable by him in equity. When and how such an obligation was incurred is not clear. It cannot be on the theory applied in the St. Lawrence & Great Lakes Transportation Company, the Lord Strathcona, and similar cases, that the right to specific performance of a contract creates an equitable interest in the property to which the contract relates, enforceable against transferees of the property with notice of the promisee’s equity. The 50 per cent, clause does not relate to any specific property; it did not, therefore, per se create any equitable right in the debenture holders to the securities pledged to General Electric as collateral to its loan, even though the loan was knowingly made in violation of the company’s contractual duty to the debenture holders. The contention of plaintiff and cross-plaintiff, therefore,- goes further than any of the cases cited, unless it be that of Meyer v. Washington Times Co., supra, in which, however, the element of uniqueness was involved. They seek to have the -court create a liability in equity, based on a knowing participation in, though not the inducing of a breach of contract when, for that breach, the remedy at law against the promisor is inadequate, because of its insolvency, actual or highly probable. Such noninducing interference or participation by the third party is not actionable at law as a tort. Sweeney v. Smith, 167 F. 385 (C. C. E. D. Pa. 1909), affirmed, 171 F. 645 (C. C. A. 3d 1909), certiorari denied 215 U. S. 600, 30 S. Ct. 400, 54 L. Ed. 343; Lamport" }, { "docid": "16443847", "title": "", "text": "loan must be considered in the same light as those by the Bankers Trust, the Central Hanover, and the Irving. It would differ, however, from these bank loans, if I. U. I. was insolvent on December 22d or in all probability would soon become insolvent. A debenture holder, seeking on that date to enjoin the making of the loan, could certainly have established at least a strong probability of a very early insolvency. Although the authorities are in conflict on the right to equitable' relief on a legal claim merely because of a promisor’s insolvency (Parker v. Garrison, 61 Ill. 250; but see Williston (1906) Transfers of After Acquired Personal Property, 19 Harv. L. Rev. 557, 584-5), there are in this case sufficient additional elements to justify equitable intervention when, despite acceleration, full recovery would have been jeopardized by such actual or probable insolvency. In these circumstances, there would have been no adequate legal remedy. The question as to the liability1 of the General Electric, therefore, depends upon whether the debenture holders’ right to have the consummation of the loan enjoined gives them the right, after its consummation, to have the loan transaction set aside, leaving to General Electric merely an unsecured claim against I. U. I. for money had and received. As herein-above stated, plaintiff and cross-plaintiff urge that the right to enjoin a breach of the negative covenant, like the right to obtain specific performance of an affirmative promise, is, in effect, an equitable interest in the property to which the contract relates, enforceable against one who takes the property with notice of the equity. There is an essential difference between an injunction against A forbidding him to execute an agreement with B which would interfere with the performance of B’s promise to C, and a decree which overturns a consummated transaction, because made contrary to B’s agreement with C and with full knowledge of the breach. In the first case, the only damage occasioned to A is the loss of a pos sible opportunity to make a profit. The injunction directed against A is, in reality, incidental" }, { "docid": "16443842", "title": "", "text": "of contractual rights recognized in equity as unique. No such situation is presented in the instant cases. While the provision for acceleration of maturity does not purport to be and is not the only remedy of the debenture holder for breach of a covenant, on the other hand, his optional right not to mature the debt and the correlative right to continue the loan at the agreed rate until its stated maturity, have no such element of uniqueness as would induce a court of equity to lake jurisdiction and to enjoin a breach of the covenant. Clearly, equity would deem his right to accelerate and then to recover his debt at law an adequate remedy. In Chase National Bank v. Sweezy, 156 Misc. 6, 281 N. Y. S. 487, a company had issued debentures under a trust indenture providing that, so long as the debentures remained outstanding, the company would not mortgage or pledge any of its property to secure any new indebtedness of any sort unless the debentures were equally and ratably secured. No provision was made for acceleration of the principal in the event of violation. The trustee under the indenture subsequently loaned money to the company and received a portion of its assets as security therefor. The debenture holders were held entitled to share in the security on the ground that they could have enjoined the loan and pledge and that they therefore had an equitable lien on the pledged property as against the trustee, which was held to have had actual knowledge of the terms of the indenture. Since there was no provision for acceleration of pjincipal, the debenture holders clearly had no adequate remedy at law for the violation of the covenant. Moreover, the lender in that case was an express trustee for the benefit of the debenture holders, and was for that reason, if for no other, liable for violation of its fiduciary duty to them. The conclusion that the debenture holders would have had no right to enjoin the consummation of the loans made by defendant banks is decisive of the present suits" }, { "docid": "16443848", "title": "", "text": "the consummation of the loan enjoined gives them the right, after its consummation, to have the loan transaction set aside, leaving to General Electric merely an unsecured claim against I. U. I. for money had and received. As herein-above stated, plaintiff and cross-plaintiff urge that the right to enjoin a breach of the negative covenant, like the right to obtain specific performance of an affirmative promise, is, in effect, an equitable interest in the property to which the contract relates, enforceable against one who takes the property with notice of the equity. There is an essential difference between an injunction against A forbidding him to execute an agreement with B which would interfere with the performance of B’s promise to C, and a decree which overturns a consummated transaction, because made contrary to B’s agreement with C and with full knowledge of the breach. In the first case, the only damage occasioned to A is the loss of a pos sible opportunity to make a profit. The injunction directed against A is, in reality, incidental to C’s right against B. The process of the court is invoked against A to prevent nullification of its decree against B; C has no independent right against A enforceable in equity unless A is threatening to commit a tort by inducing B to break his contract. On the other hand, a decree against A which overturns an executed transaction and which would, as in the present case, occasion present loss to A, must be based, on the theory that A is under some direct obligation to C enforceable by him in equity. When and how such an obligation was incurred is not clear. It cannot be on the theory applied in the St. Lawrence & Great Lakes Transportation Company, the Lord Strathcona, and similar cases, that the right to specific performance of a contract creates an equitable interest in the property to which the contract relates, enforceable against transferees of the property with notice of the promisee’s equity. The 50 per cent, clause does not relate to any specific property; it did not, therefore," }, { "docid": "16443825", "title": "", "text": "discussion, however, the cases cited will be treated as though advanced in support of four nominally separate, although in reality to a large extent interrelated, theories of liability: (1) That the issuance of the debentures created an equitable lien for the benefit of the debenture holders on all of the assets of I. U. 1., whether held by the company at that time or thereafter acquired; (2) that the covenants created “something in the nature of an equitable servitude” on all such assets of T. U. I.; (3) that defendants are constructive trustees of the pledged collateral for the benefit of the debenture holders, either because they participated in a breach of trust or knowingly and unjustifiably interfered with the debenture holders’ contract rights; (4) that the debenture holders had a right, enforceable in equity, to continued performance of their contract by I. U. I., and consequently now have an equitable right of reparation against those who knowingly invaded that right, even though they did not induce the breach of contract. 5. The claim of an equitable^, lien on all of the assets of I. U. I. then held and subsequently acquired, created by the issuance of the debentures, is without foundation. This claim, as well as that of “something in the nature of an equitable servitude” is rested on the negative pledge clause, for that covenant alone purports to restrict the use of property. I have hereinabove determined that there was no violation of this restriction. But even if the negative pledge clause prohibited the pledges in question, no equitable lien can be created out of that prohibition. There was here no agreement to set aside or to hold and no appropriation or intention to appropriate any specific property or fund as collateral security for the debenture obligations, the prerequisite to the creation of an equitable lien. Cushing v. Chapman, 115 F. 237 (C. C. E. D. Mo. 1902); Addison v. Enoch, 48 App. Div. 111, 62 N. Y. S. 613 (1900), affirmed without opinion 168 N. Y. 658, 61 N. E. 1127 (1901); Gosselin Corporation v. Mario Tapparelli" }, { "docid": "8335990", "title": "", "text": "of Trusts, §§ 461, 462 (4th ed. 1989); Restatement of Restitution §160 Comment a (1937). Transfers induced by fraud, mistake, duress or undue influence, and acquisitions of property through violation of a fiduciary duty, are the principal examples of circumstances giving rise to a constructive trust. Id., §§ 160, 163-69. Principles of unjust enrichment can also impose a constructive trust in the form of an equitable lien. Id., § 161. The beneficiary of a constructive trust has priority over creditors of the title holder, even a creditor who obtains a judicial lien without knowledge of the underlying circumstances. Id., § 173, comment j. Only a bona fide purchaser can cut off the beneficiary’s rights in the property. Id., § 172. The same is true where a trustee conveys trust property in breach of trust; only a purchaser for value without notice of the wrong takes the property free of the interest of the trust beneficiaries. Restatement of Trust (Second) § 284- This is so because the bona fide purchaser has a unique place in the law. Unlike the general creditor body, he furnishes fair value in full reliance upon the debtor’s title to specific property. G. Glenn, Fraudulent Conveyances and Preferences, 406 (1940). Although constructive trust principles concerning fraud are analogous to those governing FDIC’s fraudulent transfer claim, FDIC’s rights are not, strictly speaking, those of a constructive trust beneficiary. There is no occasion for application of general principles of unjust enrichment in determining rights in the property transferred; the Uniform Fraudulent Conveyance Act is specifically designed for this cause of action. FDIC’s rights concerning the property itself must therefore rise or fall under that statute. Nevertheless, the statute does not purport to control rights in proceeds of the transferred property, which is the issue now before the court. To this extent I obtain some teaching from constructive trust principles. Under the prior Act, the beneficiary of an express, resulting or constructive trust had priority over the trustee in bankruptcy despite the trustee’s status as hypothetical judicial lien or judgment creditor, just as the trust beneficiary had priority over such" }, { "docid": "16443835", "title": "", "text": "res to which a trust might have attached; clearly all the assets of I. U. I. were not intended to be held in trust for the benefit of the debenture holders. I. U. I. neither intended to nor could it be a trustee for the debenture holders of its own promises to them. Tt follows that the banks cannot be held liable as knowing participants in a breach of trust. Kaplan v. Chase Nat. Bank, 156 Misc. 471, 281 N. Y. S. 825, applies only to the negative pledge clause, but even as so applied, it is clearly distinguishable. The defendant in that case- was the trustee under a trust indenture securing an issue of debenture bonds, which contained a covenant that the company would not create any lien on or pledge of the stock of its subsidiaries without ratably securing the debentures. The trustee, defendant, which loaned money to the company and received stock of its subsidiaries as collateral without any provision for ratably securing the debentures, was ordered, in the suit by'debenture holders, to treat the pledged collateral as though such a provision had been made. The defendant in that case, unlike defendants in the case at bar, was an express trustee for the benefit of the debenture holders; in such a situation, the beneficiaries clearly have a right of action against the trustee for the violation of its fiduciary duty to them. Plaintiff and cross-plaintiff also seek to charge defendants as constructive trustees on the theory that receipt of property with knowledge that the transfer is in violation of a contractual obligation creates a liability in equity in favor of the obligee. But the cases do not support this broad proposition. Angle v. Chicago, St. Paul, etc., Ry. Co., 151 U. S. 1, 25, 14 S. Ct. 240, 38 L. Ed. 55 (1894.) is not in point. All that it holds is that where A, by fraudulent means, induces B to break his contract with C, as a result of which A obtains property which would otherwise have gone to C, A holds that property in constructive" }, { "docid": "16443834", "title": "", "text": "to enjoin a breach of a negative covenant and the right to specific performance of an affirmative promise are but two incidents of one basic right, enforceable in equity, that to performance of a contract, for the breach of which an action at law for damages would be an inadequate remedy. Therefore, the applicability to the situation now before the court of the cases cited in support of both propositions, i. e., that the right to specific performance of an affirmative promise and the right to enjoin breach of a negative covenant, create equitable interests in the property to which they relate, may best be considered together in relation to the fourth theory of liability. 7. Analogies from the law of trusts, upon which plaintiff and cross-plaintiff also rely, do not advance their cause. The argument is made that, because no trust indenture was executed in connection with the debentures, the company itself is in the position of a trustee for the debentureholders. The cases cited do not support this novel theory. There was no res to which a trust might have attached; clearly all the assets of I. U. I. were not intended to be held in trust for the benefit of the debenture holders. I. U. I. neither intended to nor could it be a trustee for the debenture holders of its own promises to them. Tt follows that the banks cannot be held liable as knowing participants in a breach of trust. Kaplan v. Chase Nat. Bank, 156 Misc. 471, 281 N. Y. S. 825, applies only to the negative pledge clause, but even as so applied, it is clearly distinguishable. The defendant in that case- was the trustee under a trust indenture securing an issue of debenture bonds, which contained a covenant that the company would not create any lien on or pledge of the stock of its subsidiaries without ratably securing the debentures. The trustee, defendant, which loaned money to the company and received stock of its subsidiaries as collateral without any provision for ratably securing the debentures, was ordered, in the suit by'debenture holders," }, { "docid": "8689711", "title": "", "text": "equity in the pledged securities; but the debenture holders did not have even a secondary lien on the securities, although the Debenture Corporation was doubtless charged with a trust in the securities for their benefit. The debenture holders are in no sense debtors to the R.F.C. Their only legal or equitable relation to it was that both it and they were creditors of the Debenture Corporation, the R.F.C. being a secured creditor and the debenture holders unsecured. The suggested analogy also fails because there has been no wrongful act committed by anybody in this case with the result of imposing on the debenture holders as innocent third parties an obligation to the R. F.C. which they would not otherwise have incurred. The debt which has been paid and satisfied by the Casualty Company as surety was not created by any wrongful act but in pursuance of the most express and formal contracts of which the debenture holders had full notice and which indeed was the very foundation of the whole refinancing plan to which they voluntarily became parties. In considering the situation even from the very general standpoint of fairness of the exercise of the right of subrogation by the Casualty Company, it may be noted that clearly the R.F.C. had the full and perfect right as pledgee of the collateral to resort to the principal for the interest on the loan and if it had done so, instead of calling on the guarantor to pay currently accumulating ini crest, its right to do so could not have been denied and is in fact admitted by the Debenture Corporation. In that event the Debenture Corporation would have been no worse off with respect to the pledged collateral than it will now be after giving effect to subrogation in favor of the Casualty Company. It is true that counsel for the Maryland Trust Company, Trustee, as intervenor in this case, contends in that event the Debenture Corporation would have had some right of action against the Casualty Company for the amount of principal of the mortgage securities applied by the R.F.C." }, { "docid": "16443824", "title": "", "text": "depositor in making both the payment into and the withdrawal from the account is clearly shown. Concededly, the original loan made by and the pledge of stock to the Commercial National Bank were not in violation of the 50 per cent, clause. 4. For the purpose of determining the liability of the remaining bank defendants, the Bankers Trust, the Central Hanover, and the Irving, it is not'now necessary to decide the validity of defendants’ other contentions as to the proper interpretation of the 50 per cent, clause, advanced to support their position of nonviolation. Even assuming a violation of this covenant and full knowledge thereof on the part of defendants, I can find no ground upon which either plaintiff or cross-plaintiff is entitled to recover the pledged collateral. As is frequently the case in novel actions in equity, the various equitable doctrines and analogies invoked by plaintiff and cross-plaintiff to support their position overlap to such a large extent that they cannot readily be developed in any very definite pattern. For the purposes of this discussion, however, the cases cited will be treated as though advanced in support of four nominally separate, although in reality to a large extent interrelated, theories of liability: (1) That the issuance of the debentures created an equitable lien for the benefit of the debenture holders on all of the assets of I. U. 1., whether held by the company at that time or thereafter acquired; (2) that the covenants created “something in the nature of an equitable servitude” on all such assets of T. U. I.; (3) that defendants are constructive trustees of the pledged collateral for the benefit of the debenture holders, either because they participated in a breach of trust or knowingly and unjustifiably interfered with the debenture holders’ contract rights; (4) that the debenture holders had a right, enforceable in equity, to continued performance of their contract by I. U. I., and consequently now have an equitable right of reparation against those who knowingly invaded that right, even though they did not induce the breach of contract. 5. The claim of" }, { "docid": "4363768", "title": "", "text": "and such property is held by the person to be charged as constructive trustee (compare Restatement of Trusts, § 74). Thus, although a constructive trust arises where a transfer of the title to land or a chattel or a chose in action is obtained by fraud, yet where by fraud a person is induced to render services, no constructive trust arises, even though the person rendering the services is entitled to recover the value of his services. * * * So also, a constructive trust no longer continues when the person chargeable as constructive trustee of property no longer holds the property or other property which is its product. As to reaching the product, see §§ 202-215 (Chapter 13). Restatement of Restitution, § 160, Comment i (1936). In other words, if the defendant has already sold the subject property, the only relief remaining is to sue the defendant for damages under the common law theory of unjust enrichment. There would be no need under such a circumstance for equity to intercede, either with a constructive trust or otherwise. Michigan law is consistent with the Restatement. If a Michigan court is to order a constructive trust, there first must be a res (i.e., identifiable property) in the possession or control of the defendant against which to impose that trust. Otherwise, there is no point to the relief. Damages will do. In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means, or under any other similar circumstances, which render it unconscionable for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property, either in the hands of the original wrongdoer, or in the hands of any" }, { "docid": "16443843", "title": "", "text": "provision was made for acceleration of the principal in the event of violation. The trustee under the indenture subsequently loaned money to the company and received a portion of its assets as security therefor. The debenture holders were held entitled to share in the security on the ground that they could have enjoined the loan and pledge and that they therefore had an equitable lien on the pledged property as against the trustee, which was held to have had actual knowledge of the terms of the indenture. Since there was no provision for acceleration of pjincipal, the debenture holders clearly had no adequate remedy at law for the violation of the covenant. Moreover, the lender in that case was an express trustee for the benefit of the debenture holders, and was for that reason, if for no other, liable for violation of its fiduciary duty to them. The conclusion that the debenture holders would have had no right to enjoin the consummation of the loans made by defendant banks is decisive of the present suits against them. If the making of the loans gave the debenture holders no legal or equitable rights against the banks, the subsequent insolvency of I. U. 1. did not create such rights. It would be a novel doctrine that a breach of contract, causing no irreparable injury at the time, is yet cognizable in equity because the subsequent insolvency of the promisor robs the promisee of the practical value of his remedy at law. Since there is no legal liability of defendant banks because none of them induced I. U. I.’s alleged breach of covenant and no equitable jurisdiction because the legal remedy against I. U. I. was adequate, the bills and cross-bills brought against them must be dismissed. 9. The situation as to the General Electric loan is in some respects different from that as to any of the others. As to a part, at least, it is somewhat similar to the Guaranty Trust transaction. Samuel Insull, Sr., stated to Gerard Swope, president of General Electric, that loans aggregating $2,000,000, of which the $500,000" }, { "docid": "16443832", "title": "", "text": "Co., 204 Ala. 566, 86 So. 880, 19 A. L. R. 987 (1920) (“first-run” motion pictures); Murphy v. Christian Press Association Publishing Co., 38 App. Div. 426, 56 N. Y. S. 597 (1899) (electrotype plates for a copyrighted book); Phonograph Co. v. Menck, [1911] A. C. 336 (patented phonographs and records). The citation of such cases as In re Waterson, Berlin & Snyder Co., 48 F.(2d) 704 (C. C. A. 2d 1931); Great Lakes & St. L. T. Co. v. Scranton Coal Co., 239 F. 603 (C. C. A. 7th 1917); Lord Strathcona Steamship Co. v. Dominion Coal Co., [1926] A. C. 108; Wederman v. Societe Generale d’Electricite, 19 Ch. Div. 246 (1881), and DeMattos v. Gibson, 4 De G. & J. 276 (1858), indicates, however, that the contention of cross-plaintiff is not that the covenants create an equitable servitude, strictly speaking, but that they create some kind of an equitable right, enforcement of which would have much the same result as would enforcement of an equitable servitude. The decisions cited are, for the most part, cases involving the right to specific performance against transferees of property who took with knowledge that the transferor thereof was under obligation to convey the property to or use it for the benefit of another. The reasoning on which such relief is granted is that the right to ■ specific performance of a contract, because of inadequacy of the remedy at law, is ,an equitable right in the property to which the contract relates, a right which is not cut off by a transfer of the property to a third party who has notice of the promisee's equity. As so limited, the contention that the covenants create “something in the nature of an equitable servitude” is but a corollary of the fourth proposition, that the debenture holders had a right to enjoin I. U. I. from borrowing from and pledging collateral to defendants, and that they therefore now have an equitable interest in the wrongfully pledged stock, enforceable against defendants, assuming that the latter took the collateral with knowledge of the contract. The right" } ]

[ { "docid": "10251076", "title": "", "text": "so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 ... and other laws of the United States regulating organizations or activities affecting interstate commerce.” Section 157(d) provides for both permissive and mandatory withdrawal. The district court may withdraw the entire case before the bankruptcy court for “cause shown.” Alternatively, the district court must withdraw a proceeding if resolution of the proceeding will require consideration of both Title 11 and other federal law other than the Bankruptcy Code. Burger King, supra, 64 B.R. at 731. With respect to permissive withdrawal, the “cause shown” test “is, to be sure, an amorphous test. It is a chameleon within the legal lexicon whose definition is created by its application.” DeLorean Motor Co. v. Allard, 49 B.R. 900, 912 (Bankr.E.D.Mich.1985). In DeLorean, the court observed that use of the phrase “cause shown” in § 157(d): “[C]reates a presumption that Congress intended to have bankruptcy proceedings adjudicated in the bankruptcy court unless rebutted by a contravening policy. The presumption may be overcome only by an overriding interest based on a finding by the court that the withdrawal of reference is essential to preserve a higher interest than that recognized by congress and is narrowly tailored to serve that interest.” 49 B.R. at 912 (emphasis in original) (citation omitted). Much dispute has arisen around the interpretation of the § 157(d) mandatory withdrawal clause: “The first area of dispute concerns whether the requirement that the proceeding involve consideration of both title 11 and non-Code federal law should be read literally. One theory suggests that withdrawal is mandatory when resolution of the claims will require substantial and material claims of non-bankruptcy code statutes.... The second theory holds that the statute should be literally translated, i.e,, mandatory withdrawal is required only when resolution of the proceeding requires consideration of both title 11 and non-Code federal law.” Burger King, supra, at 731 (emphasis in original, citations omitted). In In re White Motor Corp., 42 B.R. 693, 705 (N.D.Ohio 1984), the court held that mandatory withdrawal of reference is required “only if" } ]

[ { "docid": "12567181", "title": "", "text": "THE REFERENCE Defendant filed this Motion to Withdraw the Proceeding, arguing that consideration of issues arising under Title 11 and the Securities Exchange Act of 1934 must be withdrawn under the mandatory language of § 157(d). See, e.g., In re Contemporary Lithographers, Inc., 127 B.R. 122 (M.D.N.C.1991). The claims raised in the Complaint, according to Defendant, require consideration of both Title 11 and non-bankruptcy code federal law. Defendant asserts, therefore, that the Court should withdraw the reference from the bankrupt cy court so these claims may be decided by the District Court in the pending civil matter. After the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), Congress’ power to assign judicial authority to non-Article III judges was curtailed. In response to the Court’s decision, the Congress responded by giving the district courts original jurisdiction over cases arising under title 11. See 28 U.S.C. § 1334(b). Although Congress conferred original jurisdiction to the district courts, Congress also provided parties a mechanism for withdrawing the reference after the case is referred to a bankruptcy court. 28 U.S.C. § 157(d) provides: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 ... and other laws of the United States regulating organizations or activities affecting interstate commerce. 28 U.S.C. § 157(d), quoted in Burger King Corp. v. B-K of Kansas, Inc., 64 B.R. 728 (D.Kan.1986). This statute allows two types of withdrawal: (1) mandatory and (2) permissive. Mandatory withdrawal is required if the proceeding requires consideration of both title 11 and nonbankruptcy code federal law. The courts interpreting this language have developed different theories. One theory claims withdrawal is mandatory if resolution of the issues requires “substantial and material consideration” of non-bankruptcy code statutes. Burger King, 64" }, { "docid": "15576996", "title": "", "text": "Bankruptcy and non-Bunkruptcy Laws The parties acknowledge the need to consider substantial and material questions of bankruptcy law in the motion to assume, therefore the Court’s primary focus is on the extent to which non-bankruptcy law is implicated. To find that “substantial and material” consideration of non-bankruptcy laws is necessary, the Court must determine that the motion to assume “requires ‘significant interpretation’ [of such non-bankruptcy laws] on the part of the Court.” Sibarium, 107 B.R. at 111 (citation omitted). Where application of non-bankruptcy federal law is merely speculative, mandatory withdrawal is not necessary. Id. at 113. In addition, simple application of fixed legal standards provided by such non-bankruptcy laws to a given set of facts does not necessarily trigger mandatory withdrawal. Dow Jones/Group W Television v. NBC, Inc., 127 B.R. 3, 4 (S.D.N.Y.1991) (requiring withdrawal of reference only in cases where bankruptcy judge must “‘engage in significant interpretation, as opposed to simple application, of'federal laws apart from the bankruptcy statutes’”) (citation omitted). Here, LHL argues that its antitrust claims are “substantial and material” to resolution of the motion to assume, and are neither speculative nor peripheral. LHL claims that determining the antitrust issues will require more than “rote application [ ] of federal law” and further states that “application of the antitrust laws is not routine.” LHL’s Response to Amended Mem. in Opposition to Mtn to Withdraw Reference 3, 4. In support of its position that resolution of the antitrust claims is necessary for deciding the motion to assume, LHL argues that “[t]he antitrust issues go to the heart of the Assumption Motion because their resolution will determine if a contract exists for the debtor to assume.” LHL’s Mem. in Support of Mtn to Withdraw Reference 8. Antitrust violations are a valid defense to the enforcement of a contract where the judgment of a court enforcing the contract would be enforcing the precise conduct made illegal by the antitrust laws. Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U.S. 227, 256-63, 29 S.Ct. 280, 290-92, 53 L.Ed. 486 (1909). The antitrust defense is a narrow one, however," }, { "docid": "12567183", "title": "", "text": "B.R. at 731. Accord In re White Motor Corp., 42 B.R. 693, 705 (N.D.Ohio 1984). See also 1 Collier on Bankruptcy § 3.01 at 3-59 (15th ed. 1987). Courts adopting the literal theory read the statute literally and conclude withdrawal is mandatory when the proceeding requires resolution of title 11 and non-bankruptcy code federal law statutes, regardless of the substantiality of the legal questions presented. But see In re Adelphi Institute, Inc. v. Terranova, 112 B.R. 534, 536 (S.D.N.Y.1990) (stating that if § 157 were read literally, it would eviscerate much of the work of bankruptcy courts). The Defendant argues that its Complaint requires mandatory withdrawal. The Court disagrees with the advocated approach of adopting the “literal theory.” The literal theory, if applied, would create an “ ‘escape hatch’ ” for matters properly referred to the bankruptcy court. In re Johns-Manville Corp., 63 B.R. 600, 603 (S.D.N.Y.1986). It would be incompatible with congressional intent if claims were withdrawn that involved straightforward application of a federal statute to a set of facts. The law requires more than simply non-bankruptcy code issues before requiring mandatory withdrawal. Instead, only those issues raising a “substantial and material consideration” of non-bankruptcy code law will result in mandatory withdrawal. To require “substantial and material consideration” means the claims must present something more than a lengthy complaint alleging violations of the Act. It requires resolution of cases of first impression or “substantial and material conflicts” between non-title 11 federal law and the Bankruptcy code. In re Adelphi Institute, Inc., 112 B.R. at 537. In the case sub judice, the Defendant has failed to demonstrate any complexities or conflicts requiring resolution by this Court. The essence of Plaintiff’s Complaint requires the Court to determine the shareholders’ right to elect new directors during the pendency of a bankruptcy action and the procedural correctness of having conducted such an election. The Bankruptcy Court is already involved in resolving these issues which are related to the resolution of the Debtor’s rights. In addition, the Middle District of Florida recognizes the power of the Bankruptcy Court to conduct jury trials when necessary." }, { "docid": "20918154", "title": "", "text": "so adopting, courts have attempted to further detail the requirements under Section 157(d). Citing to the leading commentator in bankruptcy law, Judge Sweet in In re Adelphi Institute, Inc. noted that the conjunctive “and” in the mandatory sentence of the said section implied that a matter is not subject to mandatory withdrawal “unless interpretation of both the provisions of Title 11 and other laws of the United States is required for resolution of the controversy.” In re Adelphi Institute, Inc., 112 B.R. at 536 (citing 1 Collier on Bankruptcy ¶ 3.01 at 3-61). On the occasions when the courts have granted motions for mandatory withdrawal, they have done so when complicated interpretive issues, often of first impression, have been raised under non-Title 11 federal laws. In re Adelphi Institute, Inc., 112 B.R. at 537. Thus, in In re Combustion Equipment Assocs., Inc., 67 B.R. 709 (S.D.N.Y.1986), aff'd, 838 F.2d 35 (2d Cir.1988) and American Telephone & Telegraph Co. v. Chateaugay Corp., 88 B.R. 581 (S.D.N.Y.1988), the courts were faced, with issues of first impression under a relatively new, com plex, and recently amended statutes, and for this reason, mandatory withdrawal was granted. Perhaps just as important to the removal determinations in these cases was that the proceedings presented and required resolution of “substantial and material conflicts” between non-title 11 federal laws and the Bankruptcy Code. See In re Combustion, 67 B.R. at 713; Chateaugay Corp., 88 B.R. at 586-88. Of similar effect is Pension Benefit Guaranty Corp. v. The LTV Corp. (In re Chateaugay Corp.), 86 B.R. 33, 38-39 (S.D.N.Y.1987), where issues of first impression under ERISA were “presented in sharp conflict with competing provisions of the Code.” See also In re Adelphi Institute, 112 B.R. at 537. In sum, the common theme ringing throughout these cases is that Section 157(d) should not “become an ‘escape hatch’ for matters properly before [the bankruptcy] court.” Id. at 536; In re Johns-Manville Corp., 63 B.R. 600, 603 (S.D.N.Y.1986). In the case at bar, Norton has failed to adequately demonstrate that adversary proceeding no. 94-91113 should be subject to mandatory withdrawal. Although there" }, { "docid": "6880846", "title": "", "text": "resolution of the questions presented. . See, e.g., Vicars, 96 F.3d at 952 (adopting the \"substantial and material” gloss and noting that it is the majority rule); In re Ionosphere Clubs, Inc., 922 F.2d 984, 995 (2d Cir.1990) (holding that mandatory withdrawal is \"reserved for cases where substantial and material consideration of non-Bankruptcy Code federal statutes is necessary”); In re White Motor Corp., 42 B.R. 703, 704 (N.D.Ohio 1984) (same). . For this reason, at least one district court within the Fourth Circuit has rejected the \"substantial and material” interpretation altogether. See In re Contemporary Lithographers, Inc., 127 B.R. 122 (M.D.N.C.1991). That court held that \"an unclear or complex federal statute” is not a prerequisite to mandatory withdrawal under § 157(d) and rejected the \"significant interpretation” requirement. Id. at 127-28. Instead, that court held that mandatory withdrawal applies whenever \"a Title 11 case presents a non-Title 11 federal question which will affect the outcome of the proceeding.” Id. at 127 (emphasis added). But see, e.g., In re Merryweather Importers, Inc., 179 B.R. 61, 62 (D.Md.1995) (holding that mere consideration is insufficient, that \"the great weight of the case law interpreting § 157(d)” requires a narrower reading, and that the consideration must be \"substantial and material”). . Compare, e.g., In re IQ Telecommunications, Inc., 70 B.R. 742, 745 (N.D.Ill.1987) (requiring mandatory withdrawal under the substantial and material standard when an adversarial proceeding in bankruptcy court \"cannot be resolved by merely incidental reference to non-Code federal laws”); with Vicars, 96 F.3d at 954-55 (holding that claims which “might involve novel issues” of non-bankruptcy federal law, not settled in the circuit, do not necessarily trigger \"substantial and material consideration,” and denying mandatory withdrawal). . See Johns-Manville, 63 B.R. at 602 (setting forth the application/interpretation distinction) (emphasis in original); City of New York v. Exxon Corp., 932 F.2d 1020, 1026 (2d Cir.1991) (endorsing the lohns-Manville \"significant interpretation” versus \"straightforward application” approach); In the Matter of Vicars Ins. Agency, Inc., 96 F.3d 949, 954 (7th Cir.1996) (same); see also In re Ionosphere Clubs, Inc., 922 F.2d 984, 996 (2d Cir.1990) (holding that mandatory withdrawal is" }, { "docid": "12567182", "title": "", "text": "mechanism for withdrawing the reference after the case is referred to a bankruptcy court. 28 U.S.C. § 157(d) provides: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 ... and other laws of the United States regulating organizations or activities affecting interstate commerce. 28 U.S.C. § 157(d), quoted in Burger King Corp. v. B-K of Kansas, Inc., 64 B.R. 728 (D.Kan.1986). This statute allows two types of withdrawal: (1) mandatory and (2) permissive. Mandatory withdrawal is required if the proceeding requires consideration of both title 11 and nonbankruptcy code federal law. The courts interpreting this language have developed different theories. One theory claims withdrawal is mandatory if resolution of the issues requires “substantial and material consideration” of non-bankruptcy code statutes. Burger King, 64 B.R. at 731. Accord In re White Motor Corp., 42 B.R. 693, 705 (N.D.Ohio 1984). See also 1 Collier on Bankruptcy § 3.01 at 3-59 (15th ed. 1987). Courts adopting the literal theory read the statute literally and conclude withdrawal is mandatory when the proceeding requires resolution of title 11 and non-bankruptcy code federal law statutes, regardless of the substantiality of the legal questions presented. But see In re Adelphi Institute, Inc. v. Terranova, 112 B.R. 534, 536 (S.D.N.Y.1990) (stating that if § 157 were read literally, it would eviscerate much of the work of bankruptcy courts). The Defendant argues that its Complaint requires mandatory withdrawal. The Court disagrees with the advocated approach of adopting the “literal theory.” The literal theory, if applied, would create an “ ‘escape hatch’ ” for matters properly referred to the bankruptcy court. In re Johns-Manville Corp., 63 B.R. 600, 603 (S.D.N.Y.1986). It would be incompatible with congressional intent if claims were withdrawn that involved straightforward application of a federal statute to a set of facts. The law requires more" }, { "docid": "728868", "title": "", "text": "statutes”). The substantial and material consideration standard “is founded on principled decision-making which enables bankruptcy courts to apply established legal standards in the same manner as district courts.” Segal, 167 B.R. at 670. The substantial and material consideration standard “avoids automatic withdrawal of matters capable of such straightforward treatment by the court most familiar with the facts” and serves judicial economy. Id. “Withdrawal is mandatory only when the non-code issues dominate the bankruptcy issues.” In re Ponce Marine Farm, Inc., 172 B.R. at 724. In City of New York v. Exxon Corp., 932 F.2d 1020, 1026 (2nd Cir.1991), the court distinguished between cases involving the significant interpretation, as opposed to the simple application, of federal laws. Cases involving significant interpretation require mandatory withdrawal, while those involving simple application do not. As at least one district court has noted, “[t]he emerging trend in cases applying § 157(d) indicates that withdrawal is mandatory only if the Bankruptcy Court is required to interpret an uncertain legal standard, as opposed to applying fixed legal standards to a given set of facts.” Dow Jones/Group W Television v. NBC, Inc., 127 B.R. 3, 4 (S.D.N.Y.1991). In NBC, Inc., the court held that it was not required to withdraw the reference because the case appeared to require the mere application of antitrust principles to new facts. Id. at 5. The Counterclaim involves consideration of antitrust and unfair competition laws. As set forth in HAL’s opposition memorandum, the antitrust and other federal law issues in this case appear to be straightforward and not matters of first impression. (Plaintiffs Opp. at 12-16.) Non-bankruptcy code issues do not dominate the case. Rather, both counts in the Complaint are core proceedings. Mesa’s Counterclaim is intertwined with the allegations in the Complaint. Indeed, the primary basis for Mesa’s Counterclaim is that the Complaint itself is a sham in violation of antitrust laws. Moreover, Mesa has not identified those portions of the antitrust laws which it contends will require substantial and material consideration. Segal, 167 B.R. at 671. As such, mandatory withdrawal is not required. See In re Hvide Marine Inc., 248 B.R." }, { "docid": "16255180", "title": "", "text": "to grant such relief only in a limited class of proceedings. In re White Motor Corp., 42 B.R. 693 (N.D.Ohio 1984). As the moving party, the plaintiffs have the burden of proving that the reference should be withdrawn. In re Michigan Real Estate Ins. Trust, 87 B.R. 447 (E.D.Mich.1988); In re Vicars, 96 F.3d at 949. Withdrawal is mandatory only when “substantial and material” consideration of non-Bankruptcy Code law “is necessary for the resolution of a case or proceeding.” In re White Motor Corp., 42 B.R. at 703-704. A “substantial and material consideration” involves more than mere rote application of the provisions of a federal law. In re Federated Department Stores, Inc., 189 B.R. 142, 144 (S.D.Ohio 1995)(citing In re Americana Expressways, Inc., 161 B.R. 707, 714-715 (D.Utah 1993)). Substantial and material consideration entails a significant interpretation of non-bankruptcy federal law. Id. (citing In re American Body Armor & Equipment, Inc., 155 B.R. 588, 590 (M.D.Fla.1993)). See also, In re Johns-Manville Corp., 63 B.R. 600, 603 (S.D.N.Y.1986)(“Further, the claim must be one which requires not only application of nonBankruptcy Code federal law, but one which requires significant interpretation thereof: It would seem incompatible with congressional intent to provide a rational structure for the assertion of bankruptcy claims to withdraw each case involving the straight-forward application of a federal statute to a particular set of facts. It is issues requiring significant interpretation of federal laws that congress would have intended to have decided by a district judge rather-than a bankruptcy judge.”); In re Adelphi Institute Inc., 112 B.R. 534, 536 (S.D.N.Y.1990); In re Texaco Inc., 84 B.R. 911, 921-22 (S.D.N.Y. 1988). A distinction must be made, therefore, between proceedings requiring “significant interpretation” of non-bankruptcy law and those merely applying such law to the facts. If the court is only required to do the latter, then mandatory withdrawal is not warranted. Id. The legal questions involved need not be of “cosmic proportions,” but must involve more than mere application of existing law to new facts. In re Vicars, 96 F.3d at 954 (internal citations omitted). In the instant matter, the Coal Act" }, { "docid": "1161208", "title": "", "text": "application,” of federal non-bankruptcy statutes. City of New York v. Exxon Corporation, 932 F.2d 1020, 1026 (2d Cir.1991); see also In re Adelphi Institute, Inc., 112 B.R. 534, 536 (S.D.N.Y.1990) (mandatory withdrawal not warranted where resolution of the matter would not entail “substantial and material consideration” of federal non-bankruptcy statute); In re Chateaugay Corp., 108 B.R. 27, 28 (S.D.N.Y.1989) (same). As then-Distriet Judge Leval explained: “It would seem incompatible with congressional intent to provide a rational structure for the assertion of bankruptcy claims to withdraw each case involving the straightforward application of a federal statute to a particular set of facts. It is issues requiring significant interpretation of federal laws that Congress would have intended to have decided by a district judge rather than a bankruptcy judge.” In re Johns-Manville Corp., 63 B.R. 600, 603 (S.D.N.Y.1986) (emphasis in original.) It follows that mandatory withdrawal is appropriate when “substantial and material” potential conflicts exist between non-bankruptcy federal laws and Title 11, see In re Chateaugay Corp., 88 B.R. 581, 588 (S.D.N.Y.1988), or when complicated interpretive issues of first impression are raised under non-bankruptcy federal laws. See In re Oil Co., Inc., 140 B.R. 30, 35 (E.D.N.Y.1992). In his motion for summary judgment in the adversary proceeding, the Trustee argues that the transactions should be rechar-acterized as loans because the National Bank Act, the Competitive Equality Banking Act (the “CEBA”) and certain related regulations issued by the Comptroller of the Currency prohibit banks from engaging in leasing unless the leasing transaction constitutes the functional equivalent of a loan. BancOhio contends that this argument infuses the case with issues which will require the bankruptcy court to substantially interpret these statutes and regulations. BancOhio suggests that the court will be required to examine the purpose underlying the laws and regulations and the interplay of the statutes and regulations with various provisions of Title 11. The Trustee counters that the issues presented by his argument require straightforward application of the laws and regulations, a factor which prevents the case from being subject to mandatory abstention. I agree. There is no substance to BancOhio’s averment that" }, { "docid": "12881800", "title": "", "text": "impression exist requiring interpretation by the bankruptcy judge. Keene’s complaint does not allege any conflict between the provisions of Title 11 and non-bankruptcy federal law. Indeed, the parties themselves concede that the suit does not involve substantive Title 11 rights. Defendants, however, allege that the proceeding presents complicated issues of first impression under both the Antitrust Law and RICO and that it is improper for the bankruptcy court to interpret these non-bankruptcy federal statutes. Mandatory withdrawal pursuant to the second sentence of § 157(d) is narrowly applied. Hassett v. BancOhio National Bank (In re CIS Corp.), 172 B.R. 748, 753 (S.D.N.Y.1994). Mandatory withdrawal is appropriate when “substantial and material” potential conflicts exist between non-bankruptcy federal laws and Title 11. O’Connell v. Terranova (In re Adelphi Institute, Inc.), 112 B.R. 534, 536 (S.D.N.Y.1990). Withdrawal is also warranted when resolution of the matter would require the bankruptcy judge to “engage in significant interpretation, as opposed to simple application,” of federal non-bankruptcy statutes. Exxon, 932 F.2d at 1026. The courts in this district have recognized that the mandatory withdrawal standard is more easily satisfied when complicated issues of first impression are implicated under non-bankruptcy federal laws. International Assoc. of Machinists and Aerospace Workers, AFL-CIO v. Eastern Air Lines, Inc. (In re Ionosphere Clubs, Inc.) (\"IAM I\"), 103 B.R. 416, 419 (S.D.N.Y.1989), aff'd, 923 F.2d 26 (1991); American Telephone & Telegraph Co. v. Chateaugay Corp., 88 B.R. 581 (S.D.N.Y.1988). For this reason, Defendants contend that maintaining the reference to the bankruptcy court is improper, and immediate withdrawal of the reference is required. However, mandatory withdrawal is a fact specific determination, and thus necessarily involves analysis in light of the circumstances involved in each case. See, e.g., McCrory Corp. v. 99 cents Only Stores (In re McCrory Corp.), 160 B.R. 502 (S.D.N.Y.1993) (finding mandatory withdrawal warranted, but to alternate district); In re Adelphi Institute, Inc., 112 B.R. 534 (S.D.N.Y.1990) (holding that existence of RICO claim did not mandate withdrawal). A proceeding is considered to be at the core of the bankruptcy “if it invokes a substantive right provided by title 11 or if it is" }, { "docid": "15576995", "title": "", "text": "reference, while the second sentence provides for “mandatory” withdrawal. I. Mandatory Withdrawal A court must withdraw the reference from the bankruptcy court when it is established that (1) the proceeding in the bankruptcy court involves a substantial and material question of both title 11 and non-Bankruptcy Code federal law, (2) the non-Bankruptcy Code federal law has more than a de minimis effect on interstate commerce, and (3) the motion for withdrawal was timely filed. United States Gypsum Co. v. National Gypsum Co. (In re National Gypsum Co.), 145 B.R. 539, 541 (N.D.Tex.1992); see also Sibarium v. NCNB Texas National Bank, 107 B.R. 108, 111 (N.D.Tex.1989). Withdrawal of reference, however, is intended to apply only to a limited class of proceedings and is not intended to be an “ ‘escape hatch through which most bankruptcy matters [could] be removed to a district court.’ ” In re National Gypsum Co., 145 B.R. at 541 (citation omitted). In determining whether mandatory withdrawal is appropriate, the Court examines the above listed factors' individually. A. Substantial and Material Questions of Bankruptcy and non-Bunkruptcy Laws The parties acknowledge the need to consider substantial and material questions of bankruptcy law in the motion to assume, therefore the Court’s primary focus is on the extent to which non-bankruptcy law is implicated. To find that “substantial and material” consideration of non-bankruptcy laws is necessary, the Court must determine that the motion to assume “requires ‘significant interpretation’ [of such non-bankruptcy laws] on the part of the Court.” Sibarium, 107 B.R. at 111 (citation omitted). Where application of non-bankruptcy federal law is merely speculative, mandatory withdrawal is not necessary. Id. at 113. In addition, simple application of fixed legal standards provided by such non-bankruptcy laws to a given set of facts does not necessarily trigger mandatory withdrawal. Dow Jones/Group W Television v. NBC, Inc., 127 B.R. 3, 4 (S.D.N.Y.1991) (requiring withdrawal of reference only in cases where bankruptcy judge must “‘engage in significant interpretation, as opposed to simple application, of'federal laws apart from the bankruptcy statutes’”) (citation omitted). Here, LHL argues that its antitrust claims are “substantial and material” to resolution" }, { "docid": "20918152", "title": "", "text": "the reference to the bankruptcy court. We begin with the mandatory withdrawal language of 28 U.S.C. § 157(d). In pertinent part, Section 157(d) provides [t]he district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce. 28 U.S.C. § 157(d). In construing this language, courts have reached different results as to its true meaning. In re Kuhlman Diecasting Co., 152 B.R. 310, 311 (D.Kan.1993). The seminal case on the issue is In re White Motor Corp., 42 B.R. 693 (N.D.Ohio 1984), in which the court carefully examined the legislative history of the statute and determined that Congress did not intend for § 157(d) to become “an escape hatch through which most bankruptcy matters will be removed to the district court.” Id. at 704. The court concluded that withdrawal is mandatory “only if th[e court] ... can make an affirmative determination that resolution of the claims will require substantial and material consideration of those non-Ccide Statutes” which have more than a “de minimis” impact on interstate commerce. Id. at 705. This determination has been followed by a majority of the courts that have considered the issue. See, e.g., In re Kuhlman Diecasting Co., 152 B.R. at 312; In re Lenard, 124 B.R. 101 (D.Colo.1991); In re St. Mary Hospital, 115 B.R. 495 (E.D.Pa.1990); Hatzel & Buehler Inc. v. Orange & Rockland Utils., Inc., 107 B.R. 34 (D.Del.1989). Other courts, however, have determined that the statute should be read liberally, and mandatory withdrawal should be required when resolution of a proceeding requires consideration of both bankruptcy and non-bankruptcy laws. See, e.g., In re IQ Telecommunications, Inc., 70 B.R. 742 (N.D.Ill.1987); In re Anthony Tammaro, Inc., 56 B.R. 999 (D.N.J.1986). Courts in this circuit have adopted the former and not the latter approach. See In re Horizon Air, Inc., 156 B.R. 369 (N.D.N.Y.1993); In re Adelphi Institute, Inc., 112 B.R. 534 (S.D.N.Y.1990); In re Ionosphere Clubs, Inc., 103 B.R. 416 (S.D.N.Y.1989). In" }, { "docid": "1161207", "title": "", "text": "argues that BancOhio has failed to demonstrate justification for either mandatory or discretionary ■withdrawal. According to the Trustee, the matters are core, BancOhio is not entitled to a jury trial, and even if a jury trial were available, withdrawal of the reference is not required because the bankruptcy court may hold jury trials in core matters. DISCUSSION I. Mandatory Withdrawal 28 U.S.C. § 157(d) provides: “The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce.” Mandatory withdrawal pursuant to the second sentence of § 157(d) is narrowly applied. It is warranted when resolution of the matter would require the bankruptcy judge to “engage in significant interpretation, as opposed to simple application,” of federal non-bankruptcy statutes. City of New York v. Exxon Corporation, 932 F.2d 1020, 1026 (2d Cir.1991); see also In re Adelphi Institute, Inc., 112 B.R. 534, 536 (S.D.N.Y.1990) (mandatory withdrawal not warranted where resolution of the matter would not entail “substantial and material consideration” of federal non-bankruptcy statute); In re Chateaugay Corp., 108 B.R. 27, 28 (S.D.N.Y.1989) (same). As then-Distriet Judge Leval explained: “It would seem incompatible with congressional intent to provide a rational structure for the assertion of bankruptcy claims to withdraw each case involving the straightforward application of a federal statute to a particular set of facts. It is issues requiring significant interpretation of federal laws that Congress would have intended to have decided by a district judge rather than a bankruptcy judge.” In re Johns-Manville Corp., 63 B.R. 600, 603 (S.D.N.Y.1986) (emphasis in original.) It follows that mandatory withdrawal is appropriate when “substantial and material” potential conflicts exist between non-bankruptcy federal laws and Title 11, see In re Chateaugay Corp., 88 B.R. 581, 588 (S.D.N.Y.1988), or when complicated interpretive issues" }, { "docid": "728869", "title": "", "text": "of facts.” Dow Jones/Group W Television v. NBC, Inc., 127 B.R. 3, 4 (S.D.N.Y.1991). In NBC, Inc., the court held that it was not required to withdraw the reference because the case appeared to require the mere application of antitrust principles to new facts. Id. at 5. The Counterclaim involves consideration of antitrust and unfair competition laws. As set forth in HAL’s opposition memorandum, the antitrust and other federal law issues in this case appear to be straightforward and not matters of first impression. (Plaintiffs Opp. at 12-16.) Non-bankruptcy code issues do not dominate the case. Rather, both counts in the Complaint are core proceedings. Mesa’s Counterclaim is intertwined with the allegations in the Complaint. Indeed, the primary basis for Mesa’s Counterclaim is that the Complaint itself is a sham in violation of antitrust laws. Moreover, Mesa has not identified those portions of the antitrust laws which it contends will require substantial and material consideration. Segal, 167 B.R. at 671. As such, mandatory withdrawal is not required. See In re Hvide Marine Inc., 248 B.R. 841, 844 (M.D.Fla.2000) (denying withdrawal of reference under mandatory provision where alleged unlawful monopolistic activities appear to be susceptible to a straightforward application of well-settled non-bankruptcy federal law). IV. Mesa Has Not Demonstrated Cause for Permissive Withdrawal of the Reference Section 157(d) also provides for the district court’s discretionary withdrawal of a reference. With regard to a permissive withdrawal of reference, Section 157(d) provides: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. Permissive withdrawal is permitted only in a limited number of circumstances. See In re Ponce Marine Farm, Inc., 172 B.R. at 724 n. 2 (citing U.S. v. Kaplan, 146 B.R. 500 (D.Mass.1992)). In determining whether cause for permissive withdrawal exists, the Court may consider: (1) whether the proceeding is core or non-core; (2) whether the claim is legal or equitable; (3) the most efficient use of judicial resources; (4) whether the claim is triable by jury; (5) reduction of" }, { "docid": "6880845", "title": "", "text": "Rules require that motions to withdraw be filed initially in the bankruptcy court in order to allow the bankruptcy court’s clerk’s office to assemble the file required by the district court for consideration of the motion. See Local Rule 5011-1, Bankr.E.D. Va. . Debtors also suggest that the withdrawal of reference motion constitutes an illegitimate effort to preserve a spurious claim to priority status from review by the bankruptcy court. Debtors contend that the Class's entire monetary claim against Debtors is properly a prepetition, unsecured claim. According to Debtors, the Class accepted the status of an unsecured debtor until the moment that third-party creditors extended billions of dollars in credit to revivify the airline and its affiliates. And, Debtors argue, once the reorganization was made possible by this extension of credit, the Class attempted to secure more advantageous treatment than other unsecured creditors by asserting a claim to administrative priority status. It is unnecessary to consider or decide the accuracy of Debtors’ views on the Class’s motive or strategy as they are irrelevant to the resolution of the questions presented. . See, e.g., Vicars, 96 F.3d at 952 (adopting the \"substantial and material” gloss and noting that it is the majority rule); In re Ionosphere Clubs, Inc., 922 F.2d 984, 995 (2d Cir.1990) (holding that mandatory withdrawal is \"reserved for cases where substantial and material consideration of non-Bankruptcy Code federal statutes is necessary”); In re White Motor Corp., 42 B.R. 703, 704 (N.D.Ohio 1984) (same). . For this reason, at least one district court within the Fourth Circuit has rejected the \"substantial and material” interpretation altogether. See In re Contemporary Lithographers, Inc., 127 B.R. 122 (M.D.N.C.1991). That court held that \"an unclear or complex federal statute” is not a prerequisite to mandatory withdrawal under § 157(d) and rejected the \"significant interpretation” requirement. Id. at 127-28. Instead, that court held that mandatory withdrawal applies whenever \"a Title 11 case presents a non-Title 11 federal question which will affect the outcome of the proceeding.” Id. at 127 (emphasis added). But see, e.g., In re Merryweather Importers, Inc., 179 B.R. 61, 62 (D.Md.1995)" }, { "docid": "12881801", "title": "", "text": "withdrawal standard is more easily satisfied when complicated issues of first impression are implicated under non-bankruptcy federal laws. International Assoc. of Machinists and Aerospace Workers, AFL-CIO v. Eastern Air Lines, Inc. (In re Ionosphere Clubs, Inc.) (\"IAM I\"), 103 B.R. 416, 419 (S.D.N.Y.1989), aff'd, 923 F.2d 26 (1991); American Telephone & Telegraph Co. v. Chateaugay Corp., 88 B.R. 581 (S.D.N.Y.1988). For this reason, Defendants contend that maintaining the reference to the bankruptcy court is improper, and immediate withdrawal of the reference is required. However, mandatory withdrawal is a fact specific determination, and thus necessarily involves analysis in light of the circumstances involved in each case. See, e.g., McCrory Corp. v. 99 cents Only Stores (In re McCrory Corp.), 160 B.R. 502 (S.D.N.Y.1993) (finding mandatory withdrawal warranted, but to alternate district); In re Adelphi Institute, Inc., 112 B.R. 534 (S.D.N.Y.1990) (holding that existence of RICO claim did not mandate withdrawal). A proceeding is considered to be at the core of the bankruptcy “if it invokes a substantive right provided by title 11 or if it is a proceeding that, by nature, could arise only in the context of a bankruptcy ease.” In re McCrory Corp., 160 B.R. at 506 (citations omitted). Section 157(b)(2) does not clearly define a “core” proceeding, but “sets forth a non-exclusive list of matters falling under that category.” In re CIS Corp., 172 B.R. at 754. In core proceedings, the bankruptcy judge may enter “appropriate orders and judgments” which are subject to the “clearly erroneous” standard of review by the district court. 28 U.S.C. § 157(b)(1). However, the bankruptcy court’s jurisdiction over non-core proceedings is more limited. A bankruptcy judge has jurisdiction over non-core proceedings if the matter is “otherwise related to a case under title 11.” 28 U.S.C. § 157(c)(1). Although the non-core issues must relate to the issues under title 11, non-core proceedings involve disputes over rights that have little or no relation to the Bankruptcy Code, do not arise under the federal bankruptcy law and would exist in the absence of a bankruptcy case. J. Baranello & Sons, Inc. v. Baharestani (In re J." }, { "docid": "12881799", "title": "", "text": "and that the matter is properly left in the bankruptcy court at this juncture in the proceedings. A. Mandatory Withdrawal Defendants assert that the reference must be withdrawn due to the complex issues presented which will require the bankruptcy court to interpret federal statutes which are outside the scope of its expertise. See City of New York v. Exxon Corp., 932 F.2d 1020, 1026 (2d Cir.1991). Defendants argue that the bankruptcy court judge will be required to “engage in significant interpretation, as opposed to simple application,” of the Antitrust and RICO statutes, and therefore, the matter must be disposed of in the district court. Id. Keene asserts that withdrawal is not mandated, arguing that withdrawal is required only when resolution at trial presents material conflict between the provisions of Title 11 and non-bankruptcy federal law. See Carter Day Indus., Inc. v. United States Environmental Protection Agency (In re Combustion Equipment Assoc., Inc.), 67 B.R. 709, 711 (S.D.N.Y.1986). Keene alternatively argues that even under the “significant interpretation” standard announced in Exxon, no substantial issues of first impression exist requiring interpretation by the bankruptcy judge. Keene’s complaint does not allege any conflict between the provisions of Title 11 and non-bankruptcy federal law. Indeed, the parties themselves concede that the suit does not involve substantive Title 11 rights. Defendants, however, allege that the proceeding presents complicated issues of first impression under both the Antitrust Law and RICO and that it is improper for the bankruptcy court to interpret these non-bankruptcy federal statutes. Mandatory withdrawal pursuant to the second sentence of § 157(d) is narrowly applied. Hassett v. BancOhio National Bank (In re CIS Corp.), 172 B.R. 748, 753 (S.D.N.Y.1994). Mandatory withdrawal is appropriate when “substantial and material” potential conflicts exist between non-bankruptcy federal laws and Title 11. O’Connell v. Terranova (In re Adelphi Institute, Inc.), 112 B.R. 534, 536 (S.D.N.Y.1990). Withdrawal is also warranted when resolution of the matter would require the bankruptcy judge to “engage in significant interpretation, as opposed to simple application,” of federal non-bankruptcy statutes. Exxon, 932 F.2d at 1026. The courts in this district have recognized that the mandatory" }, { "docid": "20918153", "title": "", "text": "claims will require substantial and material consideration of those non-Ccide Statutes” which have more than a “de minimis” impact on interstate commerce. Id. at 705. This determination has been followed by a majority of the courts that have considered the issue. See, e.g., In re Kuhlman Diecasting Co., 152 B.R. at 312; In re Lenard, 124 B.R. 101 (D.Colo.1991); In re St. Mary Hospital, 115 B.R. 495 (E.D.Pa.1990); Hatzel & Buehler Inc. v. Orange & Rockland Utils., Inc., 107 B.R. 34 (D.Del.1989). Other courts, however, have determined that the statute should be read liberally, and mandatory withdrawal should be required when resolution of a proceeding requires consideration of both bankruptcy and non-bankruptcy laws. See, e.g., In re IQ Telecommunications, Inc., 70 B.R. 742 (N.D.Ill.1987); In re Anthony Tammaro, Inc., 56 B.R. 999 (D.N.J.1986). Courts in this circuit have adopted the former and not the latter approach. See In re Horizon Air, Inc., 156 B.R. 369 (N.D.N.Y.1993); In re Adelphi Institute, Inc., 112 B.R. 534 (S.D.N.Y.1990); In re Ionosphere Clubs, Inc., 103 B.R. 416 (S.D.N.Y.1989). In so adopting, courts have attempted to further detail the requirements under Section 157(d). Citing to the leading commentator in bankruptcy law, Judge Sweet in In re Adelphi Institute, Inc. noted that the conjunctive “and” in the mandatory sentence of the said section implied that a matter is not subject to mandatory withdrawal “unless interpretation of both the provisions of Title 11 and other laws of the United States is required for resolution of the controversy.” In re Adelphi Institute, Inc., 112 B.R. at 536 (citing 1 Collier on Bankruptcy ¶ 3.01 at 3-61). On the occasions when the courts have granted motions for mandatory withdrawal, they have done so when complicated interpretive issues, often of first impression, have been raised under non-Title 11 federal laws. In re Adelphi Institute, Inc., 112 B.R. at 537. Thus, in In re Combustion Equipment Assocs., Inc., 67 B.R. 709 (S.D.N.Y.1986), aff'd, 838 F.2d 35 (2d Cir.1988) and American Telephone & Telegraph Co. v. Chateaugay Corp., 88 B.R. 581 (S.D.N.Y.1988), the courts were faced, with issues of first impression under" }, { "docid": "12567184", "title": "", "text": "than simply non-bankruptcy code issues before requiring mandatory withdrawal. Instead, only those issues raising a “substantial and material consideration” of non-bankruptcy code law will result in mandatory withdrawal. To require “substantial and material consideration” means the claims must present something more than a lengthy complaint alleging violations of the Act. It requires resolution of cases of first impression or “substantial and material conflicts” between non-title 11 federal law and the Bankruptcy code. In re Adelphi Institute, Inc., 112 B.R. at 537. In the case sub judice, the Defendant has failed to demonstrate any complexities or conflicts requiring resolution by this Court. The essence of Plaintiff’s Complaint requires the Court to determine the shareholders’ right to elect new directors during the pendency of a bankruptcy action and the procedural correctness of having conducted such an election. The Bankruptcy Court is already involved in resolving these issues which are related to the resolution of the Debtor’s rights. In addition, the Middle District of Florida recognizes the power of the Bankruptcy Court to conduct jury trials when necessary. M.D.Fla.R. 2.18. As a result, the Plaintiff has failed to demonstrate sufficient grounds for mandatory withdrawal of the proceeding. The same result is reached even if Defendant O’Neill were to argue permissive withdrawal. Section 157(d) provides that a “district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown.” 28 U.S.C. § 157(d). However, for the reasons already discussed, Defendant has failed to demonstrate sound reasoning for withdrawing the reference. There are no issues of first impression or conflicts. Although the Complaint requires consideration of the Securities and Exchange Act, this case requires a straightforward application of the law and is properly before the Bankruptcy Court for adjudication. Accordingly, it is ORDERED AND ADJUDGED that the Defendant’s Motion to Withdraw the Proceeding is DENIED. DONE AND ORDERED. . In re Combustion Equipment Associates, Inc., 67 B.R. 709 (S.D.N.Y.1986): American Telephone & Telegraph Co. v. Chateaugay Corp., 88 B.R. 581 (S.D.N.Y.1988)." }, { "docid": "6880836", "title": "", "text": "(noting that the “broadest literal reading” of the “consideration” clause would “eviscerate much of the work of the bankruptcy court”) (quoting In re Adelphi Institute, Inc., 112 B.R. 534, 536 (S.D.N.Y.1990)); In re Johns-Manville Corp., 63 B.R. 600, 603 (S.D.N.Y.1986) (holding that § 157(d) must be construed “narrowly, so that it does not become an ‘escape hatch’ for matters properly before the bankruptcy court”). Some courts narrow the scope of § 157(d)’s “consideration” clause by construing the term “consideration” to require “substantial and material consideration” of non-bankruptcy federal law. Yet, this view is unhelpful; it begs the question, leaving unanswered what is “substantial and material” consideration. This construction also finds little warrant in the text of the statute and, in any event, has not led to consistent application of the mandatory withdrawal requirement. The majority approach, which was developed in the Second Circuit and has been adopted by the Seventh Circuit, holds that “Congress would have intended” to have cases withdrawn from the bankruptcy court and decided by a district judge only when the cases involved “issues requiring significant interpretation of [non-bankruptcy] federal laws,” not “the straightforward application of a federal statute to a particular set of facts.” Although this approach is the majority approach, other courts have used other tests to determine whether withdrawal is mandated by the statute. For example, one district court held that mandatory withdrawal is required “when complicated interpretive issues, often of first impression, have been raised under non-Title 11 federal laws or when there is a conflict between the bankruptcy and other federal law,” provided the resolution of such issues is “essential to the dispute.” In re TPI Int’l Airways, 222 B.R. 663, 667 (S.D.Ga.1998) (citations omitted). And, a few courts read § 157(d) literally to hold that withdrawal is mandatory only when resolution of the proceedings requires consideration of both bankruptcy law and non-bankruptcy federal law. In the absence of binding Fourth Circuit precedent, the construction of § 157(d)’s mandatory withdrawal provision must be guided by the statute’s plain language and purpose. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119" } ]

[ { "docid": "23617055", "title": "", "text": "of the guilty plea.” Appellee’s Br. at 21 (citing Tollett, 411 U.S. at 258, 267, 93 S.Ct. 1602). The Government only cited Tollett under the heading \"Standard of review.” Appellee’s Br. at 21. This section of the brief is a hodge-podge of disconnected case law supporting the following propositions: (1) a guilty plea bars all nonjurisdictional defenses, (2) we should construe indictments in favor of validity when defendants first challenge them on appeal, (3) we should not consider arguments raised for the first time on appeal, (4) we should review properly preserved issues for plain error, and (5) an appellant waives plain error review by failing to argue it on appeal. Id. at 21-24. The Government’s first attempt to explain this mess of case law is under the heading “The applicable standard of review is plain error.” Id. at 24. Obviously, if Defendant’s guilty plea barred his appeal, the standard of review for the merits of his claim would be irrelevant. Furthermore, the Government's brief never asserts Defendant waived the arguments he raises on appeal, nor does it.ask us to dismiss the appeal based on Defendant’s guilty plea. In light of its complete failure to explain how the Tollett rule applies to this case, we cannot conclude the Government raised the issue. \"The court will not consider issued adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” United States v. Wooten, .377 F.3d 1134, 1145 (10th Cir.2004) (internal quotation marks omitted). . The Ninth Circuit also cited our decision in United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam), to support its holding. Jacobo Castillo, 496 F.3d at 956. Our decision in Hahn, however, addressed only whether an \"enforceable appellate waiver renders [a] case moot.” Hahn, 359 F.3d at 1322 (emphasis added). An appellate waiver contained in a plea agreement is not quite the same thing as an unconditional guilty plea. The former is essentially a court-approved contract that is usually enforceable on appeal. United States v. Novosel, 481 F.3d 1288, 1291-92 (10th Cir.2007). The latter, however, is an admission the defendant" } ]

[ { "docid": "7077846", "title": "", "text": "feasible and consistent with the adversary process, Mr. Clark has his day in court, as noted infra, we afford him this best-case, plain-error scenario. Cf. Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir.2013) (noting that \"the decision regarding what issues are appropriate to entertain bn appeal in instances of lack of preservation is discretionary” and proceeding to consider petitioner’s argument \"even though [it was] not obliged to do so” where \"certain factors militate[d] in favor of considering [the argument at issue], but only under the demanding plain-error standard”). . Similarly, we reject Mr. Clark's hollow assertion that \"the evidence presented at trial ... indicates that the price of the stock in the various companies increased because of market events.” Aplt. Opening Br. at 26. While there were other factors apart from the fraudulent conduct of Mr. Clark and his co-conspirators that could have affected the stock prices, the jury was not required to necessarily conclude that they did. See Gordon, 710 F.3d at 1144 n. 22; cf. Jenkins, 633 F.3d at 802 (“Materiality in securities fraud does not depend on demonstration of a market reaction to the misstatements.”). . The magnitude of the evidence—which implicates Mr. Clark, as well as Mr. Gordon—is further explicated in our decision resolving the Gordon appeal. See, e.g., Gordon, 710 F.3d at 1142-44. . In this same motion, three other attorneys representing Mr. Clark also sought to withdraw. These attorneys were R. Thomas Seymour, Scott A. Graham, and Anthony L. Allen of Seymour & Graham, LLP. They entered their appearance as \"additional counsel” for Mr. Clark on October 1, 2009. R., Vol. I, at 346. They did not replace Mr. Smallwood, and, at least as the district court saw it, \"their involvement was limited.” Id. Specifically, they were brought in for two purposes: to oppose the government's motion to revoke Mr. Clark’s release pending trial and to persuade the court to permit the liquidation of assets for the purpose of paying attorneys' fees. See id. at 152 (Entry of Appearance, filed Oct. 1, 2009) (\"This appearance is, at present, limited to representation of Mr." }, { "docid": "11507694", "title": "", "text": "that he appeared in court and represented Twitty on May 8, when he moved, on Twitty’s behalf, for a continuance and withdrawal. Thus, Linney contends that when the Government attempted to prove criminal contempt it relied on facts “far different from those stated in its notice” and, therefore, the notice was deficient. Brief of Appellant at 21. We disagree. The notice required by Rule 42(b) is not an indictment or information. See In re Weeks, 570 F.2d 244, 246 (8th Cir.1978); United States v. Robinson, 449 F.2d 925, 930 (9th Cir.1971). Rather, a Rule 42(b) notice must simply satisfy due process requirements by “containing] enough to inform [the alleged contemnor] of the nature and particulars of the contempt charged.” Robinson, 449 F.2d at 930; see United States v. Martinez, 686 F.2d 334, 344 (5th Cir.1982). In this case, the notice provided Linney with essential facts sufficient to establish the basis for the criminal contempt charges; it clearly charged Linney with contempt for leaving town after the district court ordered him to represent Twitty. Finally, contrary to Linney’s suggestion, this case is easily distinguishable from Richmond Black Police Officers Ass’n, 548 F.2d at 123. There we found the contempt notice to be insufficient because the Government had provided the defendants with no notice that they were being charged with contempt. Id. at 127 n. 2. IV. Linney maintains that the district court denied him his Sixth Amendment right to a jury trial. He argues that the district court “could not deprive [him] of his constitutional right to a jury trial by promising to impose a fine of no more than $5,000.00.” Linney also asserts that the court actually imposed a fine exceeding $5,000, which he maintains entitled him to a jury trial. We consider each contention in turn, reviewing de novo the determination that a jury trial is not constitutionally required. See United States v. Coppins, 953 F.2d 86 (4th Cir.1991). A. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury.” U.S. Const. amend. VI." }, { "docid": "260048", "title": "", "text": "Wheeler’s in his law enforcement career. When this officer told his wife of the threats, she wanted to “go out and, you know, get comfortable using a firearm.” 3 R. 300. Another officer, upon learning of the threats, went to his church and children’s school and warned the pastor and teachers of Mr. Wheeler’s posts. He ensured that his wife was armed. Id. at 306-07. The other individuals mentioned in the posts were also concerned- — one enough so that he called the police. In light of the nature of Mr. Wheeler’s posts, and Mr. Wheeler’s home’s proximity to the preschool, we find these reactions to be eminently reasonable. We cannot say that no rational juror could find Mr. Wheeler’s statements to be true threats. Accordingly, the evidence was sufficient and Mr. Wheeler may be retried. REVERSED and REMANDED for retrial with proper instructions. . The written jury instructions refer to a \"reasonable person,” not a probable person. 1 R. 467. . Because the Supreme Court recently granted certiorari on a case from the Third Circuit addressing this precise issue, see United States v. Elonis, 730 F.3d 321 (3d Cir.2013), cert. granted, - U.S. -, 134 S.Ct. 2819, 189 L.Ed.2d 784 (2014) (No. 13-983), the government also suggests that this court \"may wish to await the Supreme Court’s decision before deciding Mr. Wheeler's case.” Aplee. Br. 23 n. 7. This court rejected a similar argument in Heineman, noting that the Elonis decision \"may not be handed down until next June, and there is always the possibility that an unexpected problem with the case will cause the Supreme Court not to proceed with its review.” 767 F.3d at 971 n. 1. Though in Heineman the defendant was only on probation, and thus would \"not suffer as much in the interim as one who has been incarcerated,” the court concluded that \"probation is not an insignificant sanction” and resolved the appeal. Id. Here, Mr. Wheeler is imprisoned and thus has an even stronger claim for quick resolution of his case than did the defendant in Heineman. Further, Mr. Wheeler challenges the sufficiency" }, { "docid": "20336132", "title": "", "text": "dealer, had been stolen. At the end of July, Twitty left his home and his job without explanation. Erik Martin met him by accident in November 1991 and they discussed the continuing federal investigation, Twitty promising to help Martin “straighten the whole matter out” so that Martin could avoid jail. In December 1991, Twitty was interviewed by federal agents and denied knowledge of the firearms conspiracy. Shortly after\" his arrest, in September 1993, Twitty gave handwriting exemplars that were intentionally distorted. At trial, Twitty did not contest the existence of a firearms conspiracy, virtually conceding that a conspiracy existed among Erik Martin and others. Instead, Twitty denied his own participation in the conspiracy and sought to undermine the credibility of Erik Martin, who provided much of the direct evidence of Twitty’s involvement. The jury convicted Twitty on all three counts. He was later sentenced to 97 months’ imprisonment and now appeals both his conviction and his sentence. 1. In this court, Twitty’s boldest argument is to claim, essentially for the first time, that the evidence showed three different conspiracies (between Erik Martin and, respectively, Cameron, Twitty, and Jordan). Twitty agrees now that the evidence was sufficient to show his own involvement but only in the narrow conspiracy between him and Erik Martin. And he argues that he was prejudiced by the admission of evidence that related solely to the other two supposedly separate conspiracies, those between Martin and Cameron and between Martin and Jordan. Twitty’s argument is a common one in conspiracy appeals. Whenever a conspiracy involves successive transactions and multiple players, it is usually possible to slice the enterprise into discrete portions. Even a single conspiracy is likely to involve subsidiary agreements relating to different individuals and transactions. And more often than not, none of the agreements is explicit; agreement is inferred from conduct; and the conceptual tests used to distinguish between one conspiracy and many are not sharp edged. See, e.g., United States v. Drougas, 748 F.2d 8, 17 (1st Cir.1984). In this case, the government offers a number of answers to Twitty’s argument, including a claim that" }, { "docid": "8461795", "title": "", "text": "I recognize that some of these cases termed the government’s actions as one of \"waiver” rather than “forfeiture.” But nothing in the case law indicates plain-error review applies to government forfeiture and abuse of discretion to government waiver. Rather, Abernathy seems to indicate that de novo review would have applied in the face of the government’s forfeiture if it were not for the two considerations it enumerated. 713 F.3d at 552 (deciding to address the merits of the defendant’s waived argument after noting the government’s forfeiture but declining to use de novo review because of two separate considerations). Indeed, the Fifth Circuit in Menesses did not apply plain error even when the government seems to have forfeited, rather than waived, its preservation argument in its briefing, 962 F.2d at 425-26 (noting the government argued the defendant's waiver for the first time at oral argument, which would seem to indicate its failure to do so earlier had been forfeiture, rather than waiver), and neither did we in a civil case, see Cook, 618 F.3d at 1138-39 (applying de novo review when the plaintiffs forfeited the defendants’ forfeiture). . The Butler condition said the defendant \"may not hunt, fish or trap any wildlife, nor accompany others engaged in such activity, nor provide guiding, outfitting or other hunting, fishing, or trapping related services.” Butler, 694 F.3d at 1184 (quotations omitted). . I would have remanded without address- . ing each part of the special condition challenged here (e.g., the ban on fishing for pleasure) or the question of whether the occupational restriction would be justified even in light of specific findings. See Butler, 694 F.3d at 1185. . Mr. Rodebaugh’s appeal briefs are unclear on the scope of his challenge to the content of the supervised-release terms. Most of his discussion involves the occupational restriction. In two places in his opening brief, however, Mr. Rodebaugh suggests that he may be intending to challenge the content of not only the occupational restriction, but also the restriction on hunting and fishing for pleasure. See Appellant's Opening Br. at 56-57 (\"Restrictions that prohibit the defendant’s enjoyment" }, { "docid": "8461751", "title": "", "text": "plain error on appeal. He has therefore waived the laekof-specific-findings argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir.2011); McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir.2010) (“[E]ven if Ms. McKissick’s duress arguments were merely forfeited before the district court, her failure to explain in her opening appellate brief why this is so and how they survive the plain error standard waives the arguments in this court.”). As for his challenge to the content of the occupational restriction, Mr. Rodebaugh may not have waived this challenge below. In his written objections to the PSR, he did not specifically object to the part of the condition prohibiting guiding and outfitting in any state. But he objected to the restriction on accompanying others in hunting and fishing. Because his outfitting and guiding business necessarily involves accompanying others in their hunting, this objection may have sufficiently preserved his argument against the occupational restriction itself. But I need not resolve this issue because I would vacate and remand for more specific findings without deciding whether the district court erred as to the content and scope of the occupational restriction. iii. The Government’s waiver or forfeiture The court may, however, consider Mr. Rodebaugh’s argument because the Government failed to argue in its brief that Mr. Rodebaugh did not preserve his lack-of-specific-fíndings challenge. In its brief, the Government failed to argue Mr. Rodebaugh had not objected below and had not argued plain error in his opening brief. The Government not only failed to argue forfeiture or waiver in its brief, it even addressed Mr. Rodebaugh’s lack-of-specific-findings argument on the merits under the abuse-of-discretion standard. By the end of briefing, therefore, the Government had clearly waived or forfeited any objection to Mr. Rodebaugh’s failure to preserve his lack-of-specific-findings argument. This is textbook waiver or forfeiture of the waiver. See Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir.2013); United States v. Heckenliable, 446 F.3d 1048, 1049 n. 3 (10th Cir.2006) (“Defendant concedes he did not challenge the validity of his plea before the district court. The Government, however, does not argue Defendant" }, { "docid": "17241333", "title": "", "text": "GPS device are instrumentalities of interstate commerce and whether kidnapping is a crime of violence. But a few pages address the Commerce Clause issue, Aplt. Ford Br. at 28-32, and he incorporates by reference his co-defendants' opening briefs, including Mr. Sanford’s Commerce Clause arguments, id. at 33. Mr. Morgan, by contrast, did not raise this issue in his opening brief or at oral argument. In his reply brief, he attempts to adopt the Commerce Clause arguments appearing in Mr. Sanford’s brief. Because Mr. Morgan raises this issue for the first time in his reply brief, we address the issue only as to Mr. Sanford and Mr. Ford. See Hill v. Kemp, 478 F.3d 1236, 1250 (10th Cir.2007) (“It is our general rule ... that arguments and issues presented at such a late stage are waived.”). . Mr. Sanford’s argument he personally did not use an instrumentality is unavailing because he was a member of the conspiracy. See Smith v. United States,-U.S.-, 133 S.Ct. 714, 721, 184 L.Ed.2d 570 (2013) (holding it is an \"established proposition that a defendant’s membership in the conspiracy, and his responsibility for its acts, endures even if he is entirely inactive after joining it.”). . See United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir.2005) (\"Plainly, congressional power to regulate the channels and instrumentalities of commerce includes the power to prohibit their use for harmful purposes, even if the targeted harm itself occurs outside the flow of commerce and is purely local in nature.”) . The district court instructed the jury that cell phones, the Internet, and GPS tracking devices are instrumentalities of interstate commerce. Ford ROA, Vol. I at 1414. As discussed below, we affirm that instruction on plain error review. . Although we are the first circuit court to address a constitutional challenge to the 2006 amendment, every district court to consider the issue has held 18 U.S.C. § 1201(a)(1) fits Lopez’s second category and is constitutional under Commerce Clause. See United States v. Ramos, No. 12 Cr. 556(LTS), 2013 WL 1932110 (S.D.N.Y. May 8, 2013) (facial and as-applied challenges); United States v." }, { "docid": "11507684", "title": "", "text": "Affirmed as modified by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge MURNAGHAN and Senior Judge BUTZNER joined. OPINION DIANA GRIBBON MOTZ, Circuit Judge: Larry R. Linney appeals his conviction for criminal contempt in violation of 18 U.S.C.A. §§ 401(1) and 401(3) (West 1966) and his sentence — a fine of $4,950 or, in the alternative, 300 hours of community service. Lin-ney challenges the sufficiency of the evidence and the adequacy of the notice of the contempt charge. He also maintains that the district court erred in denying his request for a jury trial and in imposing his sentence. We affirm in all respects, except to correct Linney’s sentence to bring it in compliance with the law. I. In May 1994, Larry R. Linney was appointed counsel for Stevie Twitty, who had been charged with conspiracy to possess with intent to distribute cocaine and cocaine base. Six months later, Linney was elected to the North Carolina General Assembly. The district court informed Linney on April 7, 1995, that Twitty’s ease would be called for trial during the term of court beginning May 1, 1995. Although Linney had represented Twitty for a year prior to the scheduled trial date, he had devoted little effort to Twitty’s case. For example, Linney had not attempted to conduct any discovery until shortly before the trial date and had filed only a single motion on Twitty’s behalf. The district court set jury selection in Twitty’s case for the morning of Monday, May 8, 1995, and mailed Linney a notice so stating. On the Friday morning before that Monday, Linney moved for a continuance and for leave to withdraw from representation of Twitty. Through his law clerk, the district judge informed Linney that both motions would be denied, but that Linney could present any objections to their denial at jury selection on May 8. At 10:00 a.m. on May 8, the district court called Twitty’s case for jury selection. Lin-ney told the court that he was not prepared for trial and then, for the first time, asserted additional arguments as to why" }, { "docid": "8461752", "title": "", "text": "whether the district court erred as to the content and scope of the occupational restriction. iii. The Government’s waiver or forfeiture The court may, however, consider Mr. Rodebaugh’s argument because the Government failed to argue in its brief that Mr. Rodebaugh did not preserve his lack-of-specific-fíndings challenge. In its brief, the Government failed to argue Mr. Rodebaugh had not objected below and had not argued plain error in his opening brief. The Government not only failed to argue forfeiture or waiver in its brief, it even addressed Mr. Rodebaugh’s lack-of-specific-findings argument on the merits under the abuse-of-discretion standard. By the end of briefing, therefore, the Government had clearly waived or forfeited any objection to Mr. Rodebaugh’s failure to preserve his lack-of-specific-findings argument. This is textbook waiver or forfeiture of the waiver. See Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir.2013); United States v. Heckenliable, 446 F.3d 1048, 1049 n. 3 (10th Cir.2006) (“Defendant concedes he did not challenge the validity of his plea before the district court. The Government, however, does not argue Defendant waived his present challenge, and accordingly, has waived the waiver. We will consider the merits of Defendant’s challenge.” (citations omitted)); United States v. Reider, 103 F.3d 99, 103 n. 1 (10th Cir.1996) (reaching the merits where “the government has not contended that [the defendant’s waiver] precluded] defendant from challenging” the relevant district court rulings). Only at oral argument, and only after this panel prompted it to do so, did the Government make an invited error argument. The majority opinion credits that argument as curing the Government’s waiver or forfeiture of the waiver in its brief, Maj. Op. at 1289-90, but I respectfully disagree. First, the majority has not pointed to a single case that credits a waiver argument by the Government made only upon prompting by the court. Second, I am not convinced a waiver argument made for the first time at oral argument would cure the Government’s clear waiver or forfeiture in its briefing. The only Tenth Circuit case I have found that credited the government’s waiver contention made for the first time at" }, { "docid": "2988215", "title": "", "text": "a final lot of liquor from the Harris farm. It is unnecessary to discuss all the evidence bearing upon Twitty’s claim of innocence, or the government’s charge of his complicity in the commission of the offense for which he was tried. It is sufficient to say that,-in view of Twitty’s possession of the recently stolen property, it was for the jury to determine whether the explanation given by him was reasonable, satisfactory, and, under all of the circumstances which were disclosed, consistent with his innocence. In taking into consideration Twitty’s explanation, and in the light of the surrounding facts and circumstances, it is our conclusion that the evidence, although circumstantial, was sufficient to warrant the jury in drawing the inference that Twitty knew that the liquor had been stolen. Nevertheless, it is our view that the judgment as to Twitty must be reversed, and the case, as to him, remanded for a new trial, for the following reason: When Twitty was being cross-examined by government counsel, he was asked: “Q. Now, you were also convicted in 1934 of receiving stolen property here in Tennessee, and given a 30 day jail sentence, weren’t you? A. That indictment was dismissed. “Q. You didn’t get a 30 day sentence? A. No, sir.” In his re-examination, Twitty’s counsel attempted to ascertain the circumstances surrounding the situation that prompted government counsel to inquire as to this conviction for having received stolen property, and Twitty was asked: “Q. Now, Mr. Twitty, there is a reference has been made here about a conviction in 1934 and you getting 30 days here. What was that reference, Mr. Farnsworth (government counsel) ? “Mr. Farnsworth: I will read them all back to you. “Mr. Gwinn (Counsel for Twitty): Just wanted that receiving stolen property. “Mr. Farnsworth: The one I asked him about, which he denied, occurred in 1934, shows Twitty served 30 days, receiving stolen property. “Mr. Gwinn: And he denied that? “Mr. Farnsworth: He denied that. Said that was set aside or something.” At the time government counsel asked Twitty the questions concerning a prior conviction, apparently Twitty’s counsel" }, { "docid": "19644208", "title": "", "text": "Instead, he proposed instructions that would have required proof that he acted purposefully or with knowledge that his statements would be received as threats. See App. 19-21. He advanced the same position on appeal and in this Court. See Brief for Petitioner 29 (\"Section 875(c)requires proof that the defendant intendedthe charged statement to be a 'threat' \" (emphasis in original)); Corrected Brief of Appellant in No. 12-3798 (CA3), p. 14 (\"[A] 'true threat' has been uttered only if the speaker acted with subjective intent to threaten\" (same)). And at oral argument before this Court, he expressly disclaimed any agreement with a recklessness standard-which the Third Circuit remains free to adopt. Tr. of Oral Arg. 8:22-23 (\"[W]e would say that recklessness is not justif[ied]\"). I would therefore remand for the Third Circuit to determine if Elonis's failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction. The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmless-error grounds. \"We have often applied harmless-error analysis to cases involving improper instructions.\" Neder v. United States,527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); see also, e.g.,Pope v. Illinois,481 U.S. 497, 503-504, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987)(remanding for harmless-error analysis after holding that jury instruction misstated obscenity standard). And the Third Circuit has previously upheld convictions where erroneous jury instructions proved harmless. See, e.g., United States v. Saybolt,577 F.3d 195, 206-207 (2009). It should be given the chance to address that possibility here. Justice THOMAS, dissenting. We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prosecutions under 18 U.S.C. § 875(c). Save two, every Circuit to have considered the issue-11 in total-has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to" }, { "docid": "20009470", "title": "", "text": "within the jurisdiction”). Cf. Jenkins, 392 F.2d at 306 (concluding that, where the theft at issue occurred in Kansas — -where defendant was tried — “[tjhere is not a sufficient relationship between the fact of possession [of items from the theft] in Oklahoma and ... receiving and possessing in Kansas” to support a finding of venue in Kansas). Accord United States v. Greene, 995 F.2d 793, 801 (8th Cir.1993) (agreeing with defendant charged with manufacturing marijuana that where the only evidence of venue in the Southern District of Iowa was holes in a map purporting to show marijuana fields and the holes were “distributed both inside and outside” that district, “only by speculating could a reasonable jury have found that any of the marijuana fields was in the district of indictment”). In sum, we conclude that there was ample evidence from which a reasonable jury could have found that venue was proper in the District of Utah. B. Jury Instructions on Venue Mr. Kelly next asserts that the district court plainly erred by not including a jury instruction on venue. More specifically, Mr. Kelly argues that “even if this court finds that the evidence is marginally sufficient as a matter of law, it is clear that venue is a highly questionable issue for the trier of fact” and, consequently, the court was obliged to give the jury an instruction on this issue. Aplt. Br. at 12-13. Mr. Kelly’s argument stems from the view that “[i]n considering whether a failure to instruct on the issue of venue constitutes plain error, courts have considered whether the issue was sufficiently questionable from the evidence such that it is fair to have required that the jury consider the issue.” Id. at 11. However, as Mr. Kelly acknowledges, because he did not request a venue instruction, we review his contention under a plain error standard. See Byrne, 171 F.3d at 1235. Under this standard, a defendant “must show: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If he satisfies these criteria, this" }, { "docid": "7077845", "title": "", "text": "and ”[t]hat is not enough”). Furthermore, even if Mr. Clark had referenced the magistrate judge’s order and attempted before us to make a preservation argument based upon it with respect to his due process/Jones challenge, he would have another problem: he did not file an objection to the magistrate judge's denial of his purported request for a hearing. See R., Vol. I, at 348-51 (Objection to Magistrate’s Order, dated Dec. 15, 2009) (failing to address the hearing ruling). Therefore, under our firm waiver rule, appellate review of the hearing denial would be barred. See, e.g., Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.2005); In re Carpenter, 205 F.3d 1249, 1253 (10th Cir.2000). When all is said and done, then, the best that Mr. Clark could ever hope for is plain-error review of his due process claim—that is, his claim predicated on the district court's purported failure to give him the opportunity to have a Jones hearing regarding the government’s imposition of a caveat. Going to great lengths to ensure that, to the extent reasonably feasible and consistent with the adversary process, Mr. Clark has his day in court, as noted infra, we afford him this best-case, plain-error scenario. Cf. Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir.2013) (noting that \"the decision regarding what issues are appropriate to entertain bn appeal in instances of lack of preservation is discretionary” and proceeding to consider petitioner’s argument \"even though [it was] not obliged to do so” where \"certain factors militate[d] in favor of considering [the argument at issue], but only under the demanding plain-error standard”). . Similarly, we reject Mr. Clark's hollow assertion that \"the evidence presented at trial ... indicates that the price of the stock in the various companies increased because of market events.” Aplt. Opening Br. at 26. While there were other factors apart from the fraudulent conduct of Mr. Clark and his co-conspirators that could have affected the stock prices, the jury was not required to necessarily conclude that they did. See Gordon, 710 F.3d at 1144 n. 22; cf. Jenkins, 633 F.3d at 802 (“Materiality in" }, { "docid": "20591238", "title": "", "text": "the mens rea, it becomes an element of the crime that must be established without consideration of the defendant’s intent.”). But Elonis does not affect our constitutional rule that a “true threat” is one that a reasonable recipient familiar with the context would interpret as a serious expression of an intent to do harm. See White, 670 F.3d at 508-10. What that means, in this circuit after Elonis, is that a conviction pursuant to § 875(c) now entails “what the [statute requires] (a subjectively intended threat) and [also] what constitutional avoidance principles demand (an objectively real threat).” See United States v. Jeffries, 692 F.3d 473, 485 (6th Cir.2012) (Sutton, J., dubitante). That is: (1) that the defen dant knowingly transmitted a communication in interstate or foreign commerce; (2) that the defendant subjectively intended the communication as a threat; and (3) that the content of the communication contained a “true threat” to kidnap or injure. To prove the second element, the Government, consistent with Elonis, must establish that the defendant transmitted the communication “for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat,” or, perhaps, with reckless disregard for the likelihood that the communication will be viewed as a threat. See Elonis, 135 S.Ct. at 2012-13. And to establish the third element, in keeping with our prior cases, the prosecution must show that an ordinary, reasonable recipient who is familiar with the context in which the statement is made would interpret it as a serious expression of an intent to do harm. See White, 670 F.3d at 508-10. Here, by contrast, the district court (which did not have the benefit of the Court’s decision in Elonis) instructed the jury that it could convict Appellant pursuant to § 875(c) if he transmitted a true threat in interstate commerce, without regard to his subjective intent. In light of Elonis, that instruction was erroneous. See United States v. Houston, 792 F.3d 663, 667 (6th Cir.2015). 2. The Government nevertheless maintains the error was harmless. We agree. The Supreme Court has “often applied harmless-error analysis to" }, { "docid": "9222018", "title": "", "text": "rather than the Government who bears the burden of persuasion with respect to prejudice,\" Fleming , 667 F.3d at 1103 (quotations omitted), relief is not warranted based on the prosecution's closing argument. As summarized above, the Government presented ample independent evidence to show that Mr. Durham committed the offenses on which the jury convicted. For example, the trial evidence supporting the jury's verdict included victim testimony and detailed written confessions by Mr. Durham. ROA, Vol. 9 at 8, 15, 16; ROA, Vol. 12 at 658, 1406, 1440, 1458. And again, the jury's acquittal of Mr. Durham on the remaining counts further supports the harmlessness of any improper prosecutorial argument. See Archuleta , 737 F.3d at 1296. So even if we could read the prosecutor's closing argument as improperly suggesting that Mr. Durham's struggle with homosexuality made him more likely to act on his temptation to touch children, Mr. Durham is not entitled to relief on plain error review. * * * * Mr. Durham has not shown that the alleged improper prosecutorial statements, individually or taken together, affected his substantial rights under the plain error test. We therefore affirm the district court's denial of Mr. Durham's motion for a new trial on grounds of prosecutorial misconduct. E. Issue Five: Cellphone Videos Authentication Mr. Durham challenges the admission of Ms. Menja's cellphone-recorded videos of his confession as improperly authenticated. Aplt. Br. at 42. He argues the \"Government did not sufficiently address [his] contention that the recordings had been altered.\" Aplt. Br. at 45. He contends the videos were admitted in error due to Mr. Durham's \"specific showing of irregularities\" and inability to inspect the cellphone itself. [Id. at 46.] Because Ms. Menja's testimony laid a sufficient foundation for authentication, we find that the district court did not abuse its discretion when it admitted her cellphone videos and affirm. 1. Standard of Review Whether the Government laid a sufficient foundation for the videos to be admitted at trial is reviewed for abuse of discretion. United States v. Green , 175 F.3d 822, 829 (10th Cir. 1999). Abuse of discretion is defined as" }, { "docid": "19232650", "title": "", "text": "it must be treated in all respects as if raised in the pleadings.” Id. “A party impliedly consents to the trial of an issue not contained within the pleadings either by introducing evidence on the new issue or by failing to object when the opposing party introduces such evidence.” Green Cnty. Food Mkt., Inc. v. Bottling Grp., LLC, 371 F.3d 1275, 1280 (10th Cir.2004); see also Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 457 (10th Cir.1982) (“Implied consent is found where the parties recognized that the issue entered the case at trial and acquiesced in the introduction of evidence on that issue without objection.”). b. Standard of review Although a trial court’s decision to give a certain jury instruction is typically reviewed for abuse of discretion, see Leder-man v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1154 (10th Cir.2012), we are limited to plain error review in this instance because Mr. Eller did not preserve his claim of error by objecting to the challenged jury instruction at trial. See Fed. R. Civ. P. 51(c), (d)(2). Mr. Eller contends that he objected, albeit “inartful[ly],” to the proposed instruction precluding the jury from awarding damages related to his student loan claims. See Aplt. Reply Br. at 7 (citing Aplt. Appx. Vol. II at 613-14). When Trans Union argued that a limiting instruction was required to keep the jury from improperly considering student loan account information when assessing damages, Mr. Eller responded: I was questioned about the student loans, and the defendants tried to show through my credit report that — is this student loan yours; is this student loan yours, and they couldn’t even — they claim I had a student loan [in] 06, and they couldn’t even show it on the credit report. Although they inferred to the jury that it appeared and that it was an accurate and truthful piece of information on my credit report, they couldn’t even show that it existed. So I guess I will just leave it at that. Aplt. Appx. Vol. II at 613-14. Mr. Eller’s statement does not indicate a clear objection to the" }, { "docid": "9222065", "title": "", "text": "or could have acquired the information from another source. Aplee. Br. at 22. Due to our disposition of the Brady issue on lack of prejudice, we do not address this argument. Although Mr. Durham sought to exclude the statement about a temptation to touch children before trial, he does not challenge its admission on appeal. Although the statements at issue \"are party admissions under [Federal Rule of Evidence] 801(d) and thus not hearsay, they must nevertheless also be analyzed for admissibility under Rule 404(b)\" because they reference other acts that could have been used as propensity evidence. United States v. Oberle , 136 F.3d 1414, 1418 (10th Cir. 1998). We note the district court offered a limiting instruction on this evidence, which defense counsel rejected. ROA, Vol. 12 at 725-26 (TT 111-12). The instruction likely would have lowered the prejudicial effect of the evidence, and Mr. Durham should not now benefit from declining it. Mr. Durham does not contend that the district court did not rule on the prosecutorial misconduct ground raised in his motion for a new trial. See Aplt. Br. at 34-39. Regardless of whether the district court ruled on this issue, the record is sufficiently developed to show that any error did not affect Mr. Durham's substantial rights under our plain error standard of review, as we explain below. Mr. Durham \"submits he properly preserved the [issue of prosecutorial misconduct] and that the standard of review is abuse of discretion\" because he \"raised the issue ... in his motion for new trial.\" Aplt. Br. at 34. Our precedent forecloses this argument. See Toro-Pelaez , 107 F.3d at 828 (when the defendant \"failed to contemporaneously object regarding the ... reasons he asserts as justification for a new trial[,] ... we ... may only reach the issue if we find plain error\"). Even if we were to conclude that the objections on the ground of repetitiousness sufficed to put the district court on notice that defense counsel believed the Government was making a propensity argument, Mr. Durham would still not be entitled to relief. Our reasons, discussed below, for" }, { "docid": "20009471", "title": "", "text": "a jury instruction on venue. More specifically, Mr. Kelly argues that “even if this court finds that the evidence is marginally sufficient as a matter of law, it is clear that venue is a highly questionable issue for the trier of fact” and, consequently, the court was obliged to give the jury an instruction on this issue. Aplt. Br. at 12-13. Mr. Kelly’s argument stems from the view that “[i]n considering whether a failure to instruct on the issue of venue constitutes plain error, courts have considered whether the issue was sufficiently questionable from the evidence such that it is fair to have required that the jury consider the issue.” Id. at 11. However, as Mr. Kelly acknowledges, because he did not request a venue instruction, we review his contention under a plain error standard. See Byrne, 171 F.3d at 1235. Under this standard, a defendant “must show: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If he satisfies these criteria, this Court may exercise discretion to correct the error if [4] it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Goode, 483 F.3d at 681 (internal quotation marks omitted) (quoting Kimler, 335 F.3d at 1141). Initially, under the circumstances of this case, we are hard-pressed to conclude that the district court erred. Contrary to Mr. Kelly’s assertions, the district court did instruct the jury on the venue issue. Although it did not include a separate jury instruction on venue, the instructions for each count clearly outlined venue as an element that the jury needed to find in order to convict Mr. Kelly. Indeed, the instructions required the jury to find that venue was proper in the District of Utah under a higher evidentiary standard than the law requires — viz., a beyond a reasonable doubt standard, as opposed to a preponderance of the evidence standard. Specifically, the jury instructions for Count I provided that a guilty verdict required the government to prove “beyond reasonable doubt” that “[t]he Defendant, Steven J. Kelly, knowingly and" }, { "docid": "19848858", "title": "", "text": "premises security liability under Oklahoma law.” Aplt. Br. at 23 n.4. Because Target mentions the court’s rejection “only in passing” and “does not present any argument to specifically challenge” the alleged error, it waived any argument that the court improperly denied the requested instructions. Kabba v. Mukasey, 530 F.3d 1239, 1248 (10th Cir.2008) (failure to raise an argument sufficiently in the opening brief waives that argument). “Many courts have ... held that an argument made only in a footnote of an appellate brief is waived.” Gregory A. Castanias & Robert H. Klonoff, Federal Appellate Practice and Procedure in a Nutshell 48 (2008). But we need not rely on such a broad rule. Here the footnote does not even contain an argument. We further note that Target’s reply brief also frames the contention in terms of error in Instruction No. 11; it does not argue that rejection of Target’s proffered instructions was error. Finally, neither the opening briefs text nor the footnote points to any place in the record where Target preserved an objection to the failure to give the instructions. This circuit’s local rule states that “[bjriefs must cite the precise reference in the record where a required objection was made and i’uled on, if the appeal is based on: ... (b) the giving of or refusal to give a particular jury instruction .... ” 10th Cir. Rule 28.2(C)(3). Target also failed to preserve for appeal its contention that the instructions should have stated that business owners are not liable if they had no time to warn or protect the visitor. Its briefs give no record cite of any trial objection made on this ground. See id. And Target’s reply brief does not dispute the contention in Mr. Therrien’s answer brief that this argument was raised for the first time on appeal. Target suggests that even if it did not preserve its arguments below, it should prevail on plain-error review. See United States v. Baum, 555 F.3d 1129, 1135 (10th Cir.2009) (unpreserved issues are reviewed for plain error). We disagree. To obtain reversal on plain-error review, the appellant must satisfy" }, { "docid": "19644207", "title": "", "text": "sufficient here. III Finally, because the jury instructions in this case did not require proof of recklessness, I would vacate the judgment below and remand for the Court of Appeals to decide in the first instance whether Elonis's conviction could be upheld under a recklessness standard. We do not lightly overturn criminal convictions, even where it appears that the district court might have erred. To benefit from a favorable ruling on appeal, a defendant must have actually asked for the legal rule the appellate court adopts. Rule 30(d) of the Federal Rules of Criminal Procedurerequires a defendant to \"inform the court of the specific objection and the grounds for the objection.\" An objection cannot be vague or open-ended. It must specificallyidentify the alleged error. And failure to lodge a sufficient objection \"precludes appellate review,\" except for plain error. Rule 30(d); see also 2A C. Wright & P. Henning, Federal Practice and Procedure § 484, pp. 433-435 (4th ed. 2009). At trial, Elonis objected to the District Court's instruction, but he did not argue for recklessness. Instead, he proposed instructions that would have required proof that he acted purposefully or with knowledge that his statements would be received as threats. See App. 19-21. He advanced the same position on appeal and in this Court. See Brief for Petitioner 29 (\"Section 875(c)requires proof that the defendant intendedthe charged statement to be a 'threat' \" (emphasis in original)); Corrected Brief of Appellant in No. 12-3798 (CA3), p. 14 (\"[A] 'true threat' has been uttered only if the speaker acted with subjective intent to threaten\" (same)). And at oral argument before this Court, he expressly disclaimed any agreement with a recklessness standard-which the Third Circuit remains free to adopt. Tr. of Oral Arg. 8:22-23 (\"[W]e would say that recklessness is not justif[ied]\"). I would therefore remand for the Third Circuit to determine if Elonis's failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction. The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmless-error grounds. \"We have often applied harmless-error analysis to cases involving" } ]

[ { "docid": "16813934", "title": "", "text": "We view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To withstand summary judgment, the non-movant must present sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). A mere scintilla of evidence is insufficient; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). ANALYSIS As a threshold matter, we recognize that claims of discrimination brought pursuant to Title VII, 42 U.S.C. § 2000e et seq., and the ADEA, 29 U.S.C. § 621 et seq., are analyzed under the same framework. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). We follow the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) burden-shifting analysis, which requires a plaintiff first to establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. To establish a prima facie case, a plaintiff must show (1) “that [s]he is a member of a protected group,” (2) “that [s]he was subject to an adverse employment decision,” (3) “that [s]he was qualified for the position,” and (4) “that [s]he was replaced by a person outside of the protected class.” Kline v. Tennessee Valley Auth., 128 F.3d 337, 349 (6th Cir.1997) (citing Mitchell, 964 F.2d at 582). In disparate treatment cases, the fourth element may be replaced with the requirement that the plaintiff show she was treated differently from similarly-situated individuals. Mitchell, 964 F.2d at 582-83." } ]

[ { "docid": "5972900", "title": "", "text": "and denied promotions on the basis of sex and race (Complaint, ¶¶ 6-18). In order to succeed in a Title VII action for disparate treatment employment discrimination based on race or sex, a plaintiff must demonstrate that the adverse employment decisions would not have been made “but for” her race or sex. See Gutz-willer v. Fenik, 860 F.2d 1317, 1325 (6th Cir.1988). A plaintiff can make this showing by presenting direct evidence, or by inference, from a prima facie showing of discrimination using the evidentiary framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In order to establish a prima facie case of disparate treatment, a plaintiff must at a minimum show that she is a member of protected class and she was treated differently than persons who are not members of a protected class. See Hollins v. Atlantic Co., Inc., 188 F.3d 652, 658 (6th Cir.1999). Thus, to prove a prima facie case of disparate treatment under Title VII, a plaintiff must prove that (1) she is a member of protected class; (2) she was qualified for the job; (3) an adverse employment action was taken against her, and (4) she was treated differently than similarly situated non-protected employees. See O’Hara v. Mt. Vernon Bd. of Educ., 16 F.Supp.2d 868, 886 n. 16 (S.D.Ohio 1998). In order to prove the fourth element, a plaintiff must produce evidence that the “relevant other employees are ‘similarly situated in all respects.’ ” See Hollins, 188 F.3d at 659 (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992)). Once the plaintiff establishes the prima facie case, the employer must meet its burden of production to establish a legitimate, nondiscriminatory reason for the plaintiffs discharge or denial of promotion. See Burdine, 450 U.S. at 253, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden of production then shifts back to the plaintiff to show by a preponderance" }, { "docid": "13724791", "title": "", "text": "it seeks to rely to create a genuine issue of material fact. Ill Under the ADEA it is unlawful for an employer to discharge or fail to hire any individual 40 years of age and older or other: wise discriminate against that person with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s age.” 29 U.S.C. § 623(a). Under Sixth Circuit precedent in reduction-in-force cases, an employer can violate the ADEA when it prefers a younger employee, even if that younger employee is within the protected class of workers aged 40 and over. Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir.), cert. denied, 498 U.S. 878, 111 S.Ct. 211, 112 L.Ed.2d 171 (1990). Here, the plaintiff gives no direct evidence of age discrimination. Having no direct evidence of discrimination, the plaintiff must make the showing described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1180 (6th Cir.1983) (courts should allocate burden of proof in ADEA case according to McDonnell Douglas-Burdine analysis Supreme Court adopted for Title VII cases). In Kline v. Tennessee Valley Auth., 128 F.3d 337 (6th Cir.1997), the Sixth Circuit described the showing required under McDonnell Douglas: When a plaintiff attempts to establish its case using the McDonnell Douglas-Bur-dine paradigm, the evidence which establishes the prima facie case is extremely important. In order to prove a prima facie case of discrimination, a plaintiff must show: 1) that he is a member of a protected group, 2) that he was subject to an adverse employment decision, 3) that he was qualified for the position, and 4) that he was replaced by a person outside of the protected class. Kline, 128 F.3d at 349 (citations omitted). The McDonnell Douglas framework consists of three stages. At the first stage, the plaintiff must establish a prima facie case that the employer discriminated against him. Second, the employer can produce evidence of a legitimate, nondiseriminatory reason for its action. Finally, the plaintiff attempts to discredit the employer by proving that" }, { "docid": "22033488", "title": "", "text": "support an inference of discrimination.” Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir.1997). When using circumstantial evidence to create an inference of discrimination, the complainant must carry the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination by his or her employer. In evaluating a claim of employment discrimination, we employ the burden-shifting approach first announced in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Vaughn v. Watkins Motor Lines, Inc., 291 F.3d 900, 906 (6th Cir.2002); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A plaintiff who successfully establishes a pri-ma facie case receives the benefit of a presumption that the employer unlawfully discriminated against him. Burdine, 450 U.S. at 254, 101 S.Ct. 1089. The burden then “shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ ” Id. at 253, 101 S.Ct. 1089 (quoting McDonnell, 411 U.S. at 802, 93 S.Ct. 1817). Finally, “should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id. Throughout this shifting burdens framework applicable when circumstantial evidence is involved, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id.; see also Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th Cir.1995). The McDonnell Douglas burden-shifting framework for circumstantial-evidence cases has been applied in the context of claims brought under the Age Discrimination in Employment Act (“ADEA”), Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir.2003), and the Rehabilitation Act. Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir.2001); Burns v. City of Columbus Dep’t of Pub. Safety, 91 F.3d 836, 843 (6th Cir.1996). C. National Origin Discrimination Claim Title VII makes it unlawful for an employer “to ... discharge" }, { "docid": "23528532", "title": "", "text": "framework governing Title VII eases is well-established. First, the plaintiff must set forth a prima facie case, which gives rise to an inference 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) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). To set forth a prima facie case of discrimination based upon a failure to promote, a plaintiff must show: (1) that he is a member of a protected class; (2) that he applied and was qualified for a promotion; (3) that he was considered for and denied the promotion; and (4) other employees of similar qualifications who were not members of the protected class received promotions. Dews v. A.B. Dick Co., 231 F.3d 1016, 1020-21 (6th Cir.2000). The Sixth Circuit has adapted this four-prong test to cases of reverse discrimination, where a member of the majority is claiming discrimination on the basis of race. In such cases, to satisfy the first prong of the prima facie case, the plaintiff must “demonstrate ‘background circumstances [to] support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir.2002) (quoting Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.1985) (quoting Parker v. Baltimore and Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C.Cir.1981))). To satisfy the fourth prong in such cases, the plaintiff must show that the defendant treated differently employees who were similarly situated but were not members of the protected class. Id Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action at issue. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant meets this burden, then the burden of production shifts back to the plaintiff to demonstrate that the proffered reason is a pretext. Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). When the" }, { "docid": "6266733", "title": "", "text": "§ 4112.02(A) are the same as those under Title VIL”). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court set forth the evidentiary framework for analyzing workplace discrimination actions. Under the McDonnell Douglas burden-shifting analysis, a plaintiff bears the burden of establishing by a preponderance of the evidence a pri-ma facie case of discrimination (i.e., a presumption of discrimination). A plaintiff satisfies this burden by proving: (1) membership in a protected class; (2) that she suffered an adverse action; (3) that she was qualified for the position; and (4) that she was replaced by, or treated differently than, someone outside the protected class. Id. at 802, 93 S.Ct. 1817. Once the plaintiff establishes a prima facie case, an inference of discrimination arises. The burden of proof then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the plaintiffs discharge. Id. Once established, the burden shifts back to the plaintiff to prove that the employer’s articulated nondiscriminatory reason for its action was merely pretext for unlawful discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In other words, the plaintiff must prove “that the [employer’s] asserted reasons have no basis in fact, that the reasons did not in fact motivate the discharge, or, if they were factors in the [employer’s] decision, that they were jointly insufficient to motivate the discharge.” Burns v. City of Columbus, 91 F.3d 836, 844 (6th Cir.1996) (citations omitted). The McDonnell Douglas burden-shifting analysis also applies to “failure to promote” discrimination claims. See Brown v. State of Tennessee, 693 F.2d 600, 603 (6th Cir.1982) (“[T]o make out a prima facie [failure to promote] case the plaintiff must show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees of similar qualifi cations who were not members of the protected group were indeed promoted at the time the plaintiffs request for promotion was denied.”)" }, { "docid": "23333618", "title": "", "text": "Wayne, Michigan. In their complaint, the Ciceros alleged that the appellees unlawfully fired Thomas Cicero because of his age. The plaintiffs brought their claim under Michigan’s Elliotb-Larsen Civil Rights Act and the common law of Michigan. Mich. Comp. Laws §§ 37.2101 et seq. (2001). Marlene Cicero filed a claim for a loss of consortium. The Ciceros asked for compensatory and other damages resulting from Thomas Cicero’s termination. Claiming diversity jurisdiction under 28 U.S.C. § 1332(a)(l)(l) (2001), the defendants removed the case to the U.S. District Court for the Eastern District of Michigan. The defendants then filed a motion for summary judgment on the plaintiffs’ age discrimination and loss of consortium claims. In deciding Borg-Warner’s motion for summary judgment, the district court used the familiar McDonnell DouglasBurdine tripartite test. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), later clarified by Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under the first stage of that test, the plaintiff must establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1817. To establish a prima facie case of discrimination, a plaintiff must show that (1) he is a member of a protected class, (2) he was qualified for his job and did it satisfactorily, (3) despite his qualifications and performance, he suffered an adverse employment action, and (4) that he was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside his protected class. See id.; see also Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572-73 (6th Cir.2000); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). The district court granted the defendants’ motion for summary judgment. In giving Borg-Warner judgment, the district court found that Cicero did not make out a prima facie case because he did not show he was qualified for his position. The district court declined to decide whether Cicero’s replacement was substantially younger, an alternative for showing Borg-Warner replaced him with a person" }, { "docid": "22868988", "title": "", "text": "analyzing it under the three-step burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973). The first step of the McDonnell Douglas framework requires the plaintiff to make out a case sufficient to withstand a motion for summary judgment (or a motion for judgment as a matter of law) — i.e., a “prima facie case.” When, as here, the plaintiff claims that his employer discharged him on account of his race, he must establish four elements: (1) that he is a member of a protected class (here, Caucasian ); (2) that he was qualified for the position he held; (3) that he was discharged from that position; and (4) that in terminating his employment, his employer treated him less favorably than a similarly situated individual outside of his protected class (here, an African-American). E.g., Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir.2003) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). If the plaintiff makes this showing, he raises a presumption that his race motivated his employer to treat him unfavorably. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Once this presumption is raised, “[t]he burden then shifts to the employer to rebut [it] by producing evidence that [the employer’s] action was taken for some legitimate, non-discriminatory reason.” EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir.2002) (citing Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094). If the employer meets its burden of production, the presumption of discrimination raised by the plaintiffs prima facie case is rebutted and thus disappears. Once the presumption of discrimination is rebutted, the inquiry “‘proceeds to a new level of specificity,’ ” whereby the plaintiff must show the employer’s proffered reason to be a pretext for unlawful discrimination. Id. at 1272-73 (citing Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1095-96). It is at this stage that the plaintiffs “burden ... merges with the ultimate burden of persuading the" }, { "docid": "22045676", "title": "", "text": "initial burden of establishing a prima facie case of discrimination by the defendant. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). A plaintiff may establish a prima facie ease of discrimination either by presenting direct evidence of intentional discrimination by the defendant, Terbovitz v. Fiscal Court, 826 F.2d 111, 114-15 (6th Cir.1987) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985)), or by showing the existence of circumstantial evidence which creates an inference of discrimination, McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Under the latter approach, the plaintiff must show (1) that he is a member of a protected group, (2) that he was subject to an adverse employment decision, (3) that he was qualified for the position, and (4) that he was replaced by a person outside of the protected class. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992); see also McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Chappell v. GTE Prods. Corp., 803 F.2d 261, 265 (6th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987). The fourth element may also be satisfied by showing that similarly situated non-protected employees were treated more favorably. Mitchell, 964 F.2d at 582-83. Once the plaintiff has established a prima facie case, which creates a presumption that the defendant unlawfully discriminated against the plaintiff, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the plaintiffs rejection. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981); Chappell, 803 F.2d at 265. If the defendant offers a legitimate reason, the burden shifts back to the plaintiff to demonstrate that the discrimination was a determinative factor in his termination. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-26. However, the ultimate burden of persuasion always remains with the plaintiff. St. Mary’s Honor Ctr. v. Hicks, — U.S. -, -, 113 S.Ct. 2742, 2747-48, 125 L.Ed.2d 407 (1993). In this" }, { "docid": "22277768", "title": "", "text": "477 U.S. at 255, 106 S.Ct. 2505). Plaintiff filed suit under section 2000e-2(a) of Title VII, which provides in relevant part: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.... 42 U.S.C. § 2000e-2(a)(l). A plaintiff may establish a claim of discrimination either by introducing direct evidence of discrimination, or by proving circumstantial evidence which would support an inference of discrimination. See Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir.1997). “The direct evidence and the circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or the other, not both.” Id. Under the circumstantial evidence approach — the approach used in the matter at hand — the three-part test of McDonnell Douglas is employed. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as later clarified by, Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This paradigm first requires Plaintiff to establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. To establish a prima facie case of discrimination under Title VII, Plaintiff must show that 1) she is a member of a protected class; 2) she was qualified for the job and performed it satisfactorily; 3) despite her qualifications and performance, she suffered an adverse employment action; and 4) she was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside her protected class. See id.; Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). If Plaintiff is able to establish a prima facie case, then under the next step of the tripartite test, a mandatory presumption of discrimination is created and the burden shifts to Defendant to “articulate some legitimate, nondiseriminatory reason for the employee’s rejection.” See 411" }, { "docid": "1378067", "title": "", "text": "93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992). The McDonnell Douglas framework consists of three stages. First, the plain tiff must establish a prima facie case of discrimination. In order to establish her prima facie case, Hall must show that (1) she is a member of a protected group; (2) she was subject to an adverse employment action; (3) she was qualified for the position; and (4) she was replaced by someone outside the protected class or was treated less favorably than a similarly-situated employee outside the protected class. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir.1995). If the plaintiff makes a prima fa-cie case, a presumption of discrimination arises. In order to overcome this presumption, the defendant must articulate a legitimate nondiscriminatory reason for the plaintiffs termination. Id. If the defendant can do so, the burden shifts back to the plaintiff to prove that the articulated reason was merely a pretext for the real reason, unlawful discrimination. Id. It is undisputed that Hall is a member of a protected class (a member of Holy Trinity Community Church), that she was qualified for her position as a Student Services Specialist at the College, and that she suffered an adverse employment decision. Hall has not alleged that she was replaced by someone outside the protected class; thus, our de novo review focuses on whether Hall has shown that she was treated less favorably than similarly-situated persons not a member of the protected class. In other words, Hall has the burden of establishing that comparable coworkers who engaged in substantially the same conduct as she were treated better. Hollins v. Atlantic Co., Inc., 188 F.3d 652, 661 (6th Cir.1999) (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994)). The district court found that Hall did not show that any similarly-situated non-protected employee had received more favorable treatment by" }, { "docid": "17304746", "title": "", "text": "circumstantial evidence, the plaintiff must make the showing described in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The McDonnell Douglas-Burdine framework consists of three stages. At the first stage, the plaintiff must establish a prima facie case of employment discrimination. To make a prima facie case, the plaintiff must show that he (1) was a member of a protected class; (2) suffered an adverse action; (3) was qualified for the position; and (4) was replaced by a person outside the protected class or was treated differently from a similarly-situated employee outside the plaintiffs class. See Wine v. Wal-Mart Stores, Inc., 1999 WL 191394, *1 (6th Cir. Mar.19, 1999); Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992). If the plaintiff makes a prima facie case, the defendant is presumed to have violated Title VII. To overcome this presumption, the defendant must set forth evidence showing that the adverse employment action arose from a legitimate, nondiscriminatory reason. See id. If the defendant does so, the burden shifts back to the plaintiff to prove pretext. See id. To show pretext, a plaintiff must do more than merely prove that a defendant’s nondiscriminatory reason for an adverse employment action is false. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Rather, a plaintiff must meet the ultimate burden of showing the defendant engaged in intentional discrimination. See id. Here, Plaintiff McDaniel says Defendant Wal-Mart discriminated against him on account of his race. Because he offers no direct evidence to prove such discrimination, McDaniel must offer evidence sufficient to make the showing described above to establish a claim under Title VII. Thus, McDaniel must initially offer evidence sufficient to establish a prima facie case of discrimination. The parties do not dispute that McDanief has satisfied the first three elements of a prima facie case. Wal-Mart concedes that McDaniel is a member of a protected class as an African-American, was" }, { "docid": "15248288", "title": "", "text": "Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-684, and the Ohio anti-discrimination statute, Ohio Rev.Code § 4112.02. In particular, Grosje-an alleged that First Energy had demoted him from his supervisory position, that he had been denied a bonus for the year 1999, and that he had been denied a promotion back to his old position. On February 22, 2002, the district court granted summary judgment to First Energy on the basis that Grosjean had presented insufficient evidence that First Energy’s stated legitimate, non-discriminatory reason for its actions, the unfavorable performance report, was pretextual. Before this court now is Grosjean’s timely appeal of that grant. II Age discrimination cases under the ADEA are analyzed under the same framework as employment discrimination cases under Title VII. Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th Cir.2002) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992)). Proof in such cases proceeds in three stages. Kline v. Tenn. Valley Auth., 128 F.3d 337, 342 (6th Cir.1997) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). First, “[i]n order to prove a prima facie case of discrimination, a plaintiff must show 1) that he is a member of a protected group, 2) that he was subject to an adverse employment decision, 3) that he was qualified for the position, and 4) that he was replaced by a person outside of the protected class.” Kline, 128 F.3d at 349 (citing Talley v. Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6th Cir.1995)). In age discrimination cases, the protected class includes all workers at least 40 years old and the fourth element is modified to require replacement not by a person outside the protected class, but merely replacement by a significantly younger person. Kline, 128 F.3d at 352-53; O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). Second, “[i]f the plaintiff establishes [a] prima facie case, the burden" }, { "docid": "6881976", "title": "", "text": "establish pretext for clear error. See Kline v. Tennessee Valley Authority, 128 F.3d 337, 341 (6th Cir.1997) (“A determination of pretext is an intermediate factual step in the determination of the ultimate factual finding of intentional discrimination or the lack thereof. It is a finding of fact subject to the clearly erroneous standard of review.”). In order to prevail under Title VII, Barnett must first establish a prima facie case of gender discrimination, which requires that she prove that: (1) she is a member of a protected class; (2) an adverse employment decision was made against her; (3) she was otherwise qualified for the position from which the adverse decision arose; and (4) a person not of her protected class replaced her. See Ensley-Gaines v. Runyon, 100 F.3d 1220, 1224 (6th Cir.1996); Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Once the prima facie elements have been established, the defendant must produce evidence that a legitimate non-discriminatory reason motivated the employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden of persuasion then returns to the plaintiff to demonstrate that the reason proffered by the defendant was pretextual. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089 (1981); Goostree v. Tennessee, 796 F.2d 854, 861-63 (6th Cir.1986). Under the ADEA, a plaintiff must proffer evidence of the following to make out a prima facie case of age discrimination: (1) that plaintiff was between 40 and 65 years old; (2) that she was qualified for the particular position; (3) that she was subjected to adverse employment action; and (4) that she was replaced by a younger individual. See Woythal v. Tex-Tenn Corp., 112 F.3d 243, 246 (6th Cir.1997); see also O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1390 (6th Cir.1993). Once a prima facie" }, { "docid": "23484150", "title": "", "text": "contends that he presented direct evidence of DaimlerChrysler’s discrimination by virtue of Slater’s deposition testimony that, in his opinion, Hopson’s race was a factor in the company’s decision to deny him the promotions for which he applied. Although Slater is a manager in the company, he admitted that he had no involvement in the decision-making process with respect to the particular jobs at issue. Furthermore, he did not reveal the basis for his opinion. Thus, while Slater’s opinion may constitute circumstantial evidence of discrimination, even if believed, it does not require the conclusion that unlawful discrimination was a motivating factor in DaimlerChrysler’s actions. See Nguyen, 229 F.3d at 563 (stating that direct evidence includes a decision-maker’s express statement of a desire to take action against employees who are members of a protected class). Therefore, the district court properly concluded that Plaintiff-Appellant fáiled to raise a genuine issue of material fact by presenting direct evidence of Defendant-Appellee’s discriminatory intent. B. Circumstantial Evidence of Discrimination 1. Title VII The analytical framework governing Title VII cases in the absence of direct evidence of discrimination is well-established. First, the plaintiff must set forth a prima facie case, which gives rise to an inference of discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); see Neuman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.2001) (stating that to establish a prima facie case, a Title VII plaintiff must show: (1) that he is a member of a protected class; (2) that he was qualified for the job; (3) that he suffered an adverse employment decision; and (4) that the job was given to a person outside his protected class). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action at issue. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant meets" }, { "docid": "1378066", "title": "", "text": "N.E.2d 392 (1997), held that the trial court need not even determine whether a church waived its Title VII exemption from religious discrimination claims based on a statement in its employment handbook that it would not discriminate against its personnel on the basis of religion. See also Siegel, 13 F.Supp.2d at 1344 (government funds are most likely available to all institutions of higher learning whether or not they have a religious affiliation). For these reasons, the district court did not err in determining that the College was exempt from the Title VII prohibition against discrimination based on religion. B. Hall also argues that the district court erred in finding that she failed to establish her prima facie case or that she failed to prove that the College’s articulated reason for firing her was pretextual. A plaintiff may prove discrimination under Title VII through direct or circumstantial evidence. In the absence of direct evidence of discrimination, a plaintiff must establish its case under the framework first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992). The McDonnell Douglas framework consists of three stages. First, the plain tiff must establish a prima facie case of discrimination. In order to establish her prima facie case, Hall must show that (1) she is a member of a protected group; (2) she was subject to an adverse employment action; (3) she was qualified for the position; and (4) she was replaced by someone outside the protected class or was treated less favorably than a similarly-situated employee outside the protected class. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir.1995). If the plaintiff makes a prima fa-cie case, a presumption of discrimination arises. In order to overcome this presumption, the defendant must articulate a legitimate nondiscriminatory reason for the plaintiffs termination. Id. If the defendant can do so," }, { "docid": "23321347", "title": "", "text": "any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race....” 42 U.S.C. § 2000e-2(a)(1). Similarly, the Elliot-Larsen Civil Rights Act prohibits “discriminat[ing] against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... race.” Mich. Comp. Laws § 37.2202(l)(a). The prima facie requirements for a discrimination case are the same under Michigan law and federal law. See Sniecinski v. Blue Cross & Blue Shield of Mich., 469 Mich. 124, 666 N.W.2d 186,193 (2003). A plaintiff may establish a claim of discrimination either by introducing direct evidence of discrimination or by presenting circumstantial evidence that would support an inference of discrimination. Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir.1997). Where, as here, the claim is based on circumstantial evidence, we employ the burden-shifting framework set forth in McDonnell Douglas. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (clarifying McDonnell Douglas burden-shifting framework). Under McDonnell Douglas, Plaintiff first carries the burden of establishing a prima facie case. 411 U.S. at 802, 93 S.Ct. 1817. To establish a prima facie case of discrimination under both Title VII and the Elliot-Larsen Civil Rights Act, Plaintiff must show that 1) he is a member of a protected class; 2) he was qualified for the job and performed it satisfactorily; 3) despite his qualifications and performance, he suffered an adverse employment action; and 4) he was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside of his protected class. See Logan, 259 F.3d at 567; Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). The parties agree that Plaintiff has satisfied the first two elements, but dispute whether Plaintiff has met the third element. In the context of a Title VII discrimination claim, an adverse employment action is defined" }, { "docid": "594597", "title": "", "text": "Supreme Court recognized in Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 66 Ohio St.2d 192, 197, 421 N.E.2d 128 (1981), that McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) sets forth the formula courts should rely upon in evaluating claims of discrimination under Ohio Rev.Code § 4112.02. The burden shifting established in McDonnell Douglas, and later clarified by Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), is divided into three stages. At the first stage, plaintiff must prove aprima facie case of discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089. It is well settled that to establish a prima facie case of disability discrimination under Ohio Rev.Code § 4112.02, plaintiff must prove that: (1) she has a disability; (2) adverse action was taken by Federal Express, at least in part, because of her disability; and (3) even though she had a disability, she could have safely and substantially performed the essential functions of the job in question with or without reasonable accommodation. Hood v. Diamond Prods., 74 Ohio St.3d 298, 302, 658 N.E.2d 738 (1996) (citing Hazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279, 281, 496 N.E.2d 478 (1986)). If plaintiff establishes a prima facie case, the burden then shifts to defendant to “articulate some legitimate, nondiscriminatory reason” for the adverse employment action. Id. (quoting McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). See Plumbers, 66 Ohio St.2d at 197, 421 N.E.2d 128. If defendant meets this burden, the final stage requires plaintiff to prove that the proffered reason was merely a pretext for unlawful discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). Pretext is established by a direct showing that “a discriminatory reason more likely motivated the employer or [by an] indirect[ ] ... showing that the employer’s explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. 1089. See also, Kline v. TVA, 128 F.3d 337, 342-43 (6th Cir.1997). Federal Express maintains" }, { "docid": "15248287", "title": "", "text": "management role. On this basis, Dres-ner recommended a performance rating of “does not meet expectations.” As a result of this rating, Grosjean was reassigned from his supervisory position to a newly-created position of planner. As a planner, he would continue to schedule trains and receive the same salary and benefits, but he would no longer have supervisory responsibility for any other employees. Grosjean’s supervisory duties were returned to Gallagher on a temporary basis. As a consequence Gallagher worked more than a thousand hours overtime during the remaining ten months of the year. Eventually, the position was filed by Richard Riley. At the time of Dresner’s unfavorable performance rating, Grosjean was 54 years old, Dresner was 41 years old, Galla gher was 48 years old, and Riley was 51 years old. On May 2, 2001, Grosjean filed a complaint against First Energy in the United States District Court for the Northern District of Ohio. In it he claimed that First Energy had discriminated against him on the basis of his age, in violation of the federal Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-684, and the Ohio anti-discrimination statute, Ohio Rev.Code § 4112.02. In particular, Grosje-an alleged that First Energy had demoted him from his supervisory position, that he had been denied a bonus for the year 1999, and that he had been denied a promotion back to his old position. On February 22, 2002, the district court granted summary judgment to First Energy on the basis that Grosjean had presented insufficient evidence that First Energy’s stated legitimate, non-discriminatory reason for its actions, the unfavorable performance report, was pretextual. Before this court now is Grosjean’s timely appeal of that grant. II Age discrimination cases under the ADEA are analyzed under the same framework as employment discrimination cases under Title VII. Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th Cir.2002) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992)). Proof in such cases proceeds in three stages. Kline v. Tenn. Valley Auth., 128 F.3d 337, 342 (6th Cir.1997) (citing Tex. Dep’t of Cmty. Affairs v. Burdine," }, { "docid": "17304745", "title": "", "text": "2505). Accordingly, viewing the evidence in the light most favorable to the nonmoving party, the court should determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251, 106 S.Ct. 2505. in. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race....” 42 U.S.C. § 2000e-2(a)(l). Thus, a plaintiff can recover under Title VII by showing he suffered racially-motivated disparate treatment by his employer. To prevail in a disparate treatment action, a plaintiff must prove by a preponderance of the evidence that he suffered intentional discrimination. See Grano v. Dep’t of Development of City of Columbus, 637 F.2d 1073, 1081 (6th Cir.1980). A plaintiff need not offer direct evidence of such discrimination. However, when seeking to prove intentional discrimination with circumstantial evidence, the plaintiff must make the showing described in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The McDonnell Douglas-Burdine framework consists of three stages. At the first stage, the plaintiff must establish a prima facie case of employment discrimination. To make a prima facie case, the plaintiff must show that he (1) was a member of a protected class; (2) suffered an adverse action; (3) was qualified for the position; and (4) was replaced by a person outside the protected class or was treated differently from a similarly-situated employee outside the plaintiffs class. See Wine v. Wal-Mart Stores, Inc., 1999 WL 191394, *1 (6th Cir. Mar.19, 1999); Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992). If the plaintiff makes a prima facie case, the defendant is presumed to have violated Title VII. To overcome this presumption, the defendant must set forth evidence showing that the adverse employment" }, { "docid": "15248289", "title": "", "text": "450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). First, “[i]n order to prove a prima facie case of discrimination, a plaintiff must show 1) that he is a member of a protected group, 2) that he was subject to an adverse employment decision, 3) that he was qualified for the position, and 4) that he was replaced by a person outside of the protected class.” Kline, 128 F.3d at 349 (citing Talley v. Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6th Cir.1995)). In age discrimination cases, the protected class includes all workers at least 40 years old and the fourth element is modified to require replacement not by a person outside the protected class, but merely replacement by a significantly younger person. Kline, 128 F.3d at 352-53; O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). Second, “[i]f the plaintiff establishes [a] prima facie case, the burden then shifts to the defendant to ‘articulate some legitimate, nondiseriminatory reason for the employee’s rejection.’ ” Kline, 128 F.3d at 342 (quoting Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089). Third, after the defendant has met this burden, “the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer’s explanation.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir.1994). In some cases, plaintiffs evidence establishing the prima facie case can also be sufficient to meet one or more of the elements necessary to rebut the defendant’s proffered non-discriminatory reasons. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). We conclude that Grosjean was not replaced by a significantly younger person. He therefore failed to make his prima facie case and we need not address the legitimate-reason and pretext parts of the McDonnell analysis, the bases on which the district court decided the issue. Grosjean argues that he was initially replaced by Gallagher, who temporarily took over his duties in addition" } ]

[ { "docid": "22363114", "title": "", "text": "Mr. Chief Justice Taft delivered the opinion of the Court. ..This is an appeal under section 250 of the Judicial dode, par. 6, from a judgment of the Supreme Court of the District of Columbia, affirmed by the Court of Appeals, granting a mandamus compelling the Secretary of the Interior to consider and allow a claim for net loéses. suffered by Logan Rives, the relator, in producing and preparing to produce manganese at the instance of the Government for war purposes, under section 5 of the Dent Act (March 2, 1919, ch. 94, 40 Stat. 1272). Relator’s petition shows that he incurred losses aggregating $55,204.15, but that the Secretary awarded him only $23,047.36, refusing to allow him, among other items, $9,600 which he had to expend in obtaining a release from a contract to buy land containing manganese, after the, land had lost most of its value because of the armistice. The mandamus asked is to compel consideration and allowance of the claim for this particular item. The Secretary’s answer avers that the relator received and accepted the.. $23,047.36 awarded March, 1920, but refused to waive any right to further award under any subsequent legislation which might provide for further payment. The answer further denies that the Secretary refused to consider the claim, but avers that, he did so fully and rejected it. The relator demurred to the answer and on that demurrer judgment followed and the writ issued. Mandamus issues to compel an officer to perform a purely ministerial duty. It can not be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He.can not transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within .them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he has. Under some statutes, the discretion extends to a final construction by the officer of the statute he is executing. No court in such a case can control by mandamus his" } ]

[ { "docid": "23437468", "title": "", "text": "duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He can not transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of thé court to intervene, if at all, thus depends upon what statutory discretion he has. ' Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925). Mr. Simmat’s claim falls within this domain. His claim is not one to control or override the discretion of the prison dentists, but simply to be examined by the dentists and to receive whatever care they believe is necessary in their professional judgment, and under the Eighth Amendment. See Complaint, R. Doc. 1 at 5-6. This is not to sáy that Mr. Simmat is entitled to the full measure of relief demanded in his complaint, namely, an order “specifying that all of plaintiffs dental deficiencies be made good, whether or not procedures required to accomplish that are within currently approved dental procedures within the BOP for its prisoners.” Id. Not only does this relief demand action beyond routine dental care under BOP policy; it exceeds the scope of Mr. Sim-mat’s alleged injuries. We do hold, however, that Mr. Simmat is not barred by sovereign immunity from obtaining judicial relief on his constitutional claim. In sum, as a result of congressional action in 1875 (creating general federal question jurisdiction), ' 1962 (extending mandamus jurisdiction to all federal district courts), and 1976 (waiving sovereign immunity in cases for nonmonetary relief against federal officials and agencies), federal district courts now have jurisdiction over claims by federal prisoners against federal prison officials seeking vindication of their constitutional rights under either 28 U.S.C. § 1331 or 28 U.S.C. § 1361, and may obtain relief in the nature of either injunction or mandamus. In many cases, these forms of relief may be interchangeable. See, e.g., Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 318, 78 S.Ct. 752, 2 L.Ed.2d 788 (1958) (concluding, in a suit" }, { "docid": "3423224", "title": "", "text": "the (1) a clear rigiit in the plaintiff to the relief sought; (2) a clear duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available. Navy, 14 Pet. 497 . . .. Between these two early and leading authorities illustrating the extremes are decisions in which the discretion is greater than the Kendall Case and less than in the Decatur Case, and its extent and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose. Id. at 177-78, 45 S.Ct. at 252. As the quoted passage indicates, judicial review of an administrator’s statutory interpretation may be very limited, since interpretation of the statute (and development of its policies) may itself be committed to agency judgment. In this vein, the Supreme Court stated in Panama Canal Co. v. Grace Line, Inc., [W]here the duty to act turns on matters of doubtful or highly debatable inference from large or loose statutory terms, the very construction of the statute is a distinct and profound exercise of discretion. supra at 318, 78 S.Ct. at 757. And in that same case the Court concluded, That does not necessarily mean that the construction of the Act, pressed on us and on Congress by petitioner, is the correct one. It does, however, indicate that the question is so wide open and at large as to be left at this stage to agency discretion. The matter should be far less cloudy, much more clear for courts to intrude. Id. at 319, 78 S.Ct. 758. In other words, in such instances, the administrator gets the benefit of the doubt even in the interpretation of the statute. Mandamus review based upon a constitutional challenge to ad ministrative action is slightly different from review of a challenge based upon statutory interpretation. Whereas in the interpretation of a statute, a court may properly accede to the administrator’s views so long as they are not in conflict with the clear language and meaning of the act, in the sphere of constitutional interpretation," }, { "docid": "3330201", "title": "", "text": "administrative discretion on internal management matters, but they cannot abdicate their responsibility to insure compliance with congressional directives setting the limits on that discretion. Reviewability and the scope of review are two separate questions. The history of the Postal Act indicates that Congress contemplated a very restricted judicial role in the Postal Service’s compensation decisions. It does not present the kind of evidence necessary to foreclose review altogether. The scope of review in this case and the resulting judicial task mimic that appropriate in mandamus actions. Chief Justice Taft’s opinion for the Court in Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561 (1925), explained the boundaries of judicial involvement in that context in this way: [Mandamus] can not be used to compel or control a duty in the discharge of which by law [an administrative officer] is given discretion. The duty may be discretionary within limits. He can not transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he has. . [The] extent [of administrative discretion] and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose. Id. at 177-78, 45 S.Ct. at 252-253. Pursuing this line of inquiry does not import into this nonstatutory review proceeding the now discredited discretionary/ministerial dichotomy that has occasionally plagued mandamus analysis. Rather it involves a straightforward question of statutory interpretation. The judicial role is to determine the extent of the agency’s delegated authority and then determine whether the agency has acted within that authority. In this as in other settings, courts owe a measure of deference to the agency’s own construction of its organic statute, see Train v. Natural Resources Defense Council, 421 U.S. 60, 87, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), but the ultimate responsibility for determining the bounds of administrative" }, { "docid": "3330199", "title": "", "text": "noble and sustained, can be undercut at a moment’s notice by the enactment of programs which, however well guided or misguided, may alter his best plans for economical, effective operations. Id. at 21710. The foregoing indicates, in our judgment that Congress intended to vest the Postal Service with broad discretion in setting compensation policies and to limit judi cial oversight of the Postal Service’s exercise of that discretion. Judicial regulation of the Postal Service’s compensation decisions can only undermine the legislative determination that the new postal management must have the freedom given by the statute to control costs and manage the new agency in a manner consistent with its views of what is the economical and efficient thing to do. This court is in no position to assess and to weigh the numerous and sundry considerations the Postal Service must address in fulfilling its statutory duty to classify and fix the compensation and benefits of its employees. Our holding that the Postal Service has broad discretion in setting compensation levels for supervisory and other managerial employees is consistent with the traditional reluctance of courts to scrutinize lawful agency decisions on internal management matters. See, e.g., National Treasury Employees Union v. Campbell, supra, 589 F.2d at 679; Wheelabrator Corp. v. Chaffee, 147 U.S.App.D.C. 238, 241, 455 F.2d 1306, 1309 (1971); cf. Kuhl v. Hampton, 451 F.2d 340, 342 (8th Cir. 1971) (per curiam); Leber v. Canal Zone Central Labor Union & Metal Trades Council, 383 F.2d 110, 118 (5th Cir. 1967), cert. denied, 389 U.S. 1046, 88 S.Ct. 769, 19 L.Ed.2d 838 (1968). This deference derives from two well-considered and complementary principles: that administrative agencies must be free from undue encumbrances to perform wholly managerial functions assigned to them by Congress, and that courts are ill-equipped to run the administrative agencies of government. See generally K.C. Davis, Administrative Law § 28.16 at 82 (1958). That deference is appropriate here. C That the Postal Service has broad discretion in setting compensation levels does not mean, however, that its decisions are entirely insulated from judicial surveillance. Courts can defer to the exercise of" }, { "docid": "8723013", "title": "", "text": "law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he has ____ [The] extent [of the officer’s discretion] and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose. Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561 (1925) (emphasis added). The central issue in every mandamus case must be the “proper interpretation of the particular statute and the congressional purpose.” See W. Gellhorn, C. Byse, & P. Strauss, Administrative Law 923 (1979). Applying this principle to Ganem’s claims, we believe mandamus is warranted to compel the Secretary to adopt realistic means for determining the content of Iranian law but is not appropriate to order the Secretary to resume benefit payments pending that determination. The Secretary’s position that the content of Iranian law can be determined only by “contact with the current Iranian government” is totally insensitive to the realities of current relations between the countries; her position thus completely contravenes the purposes of the 1969 amendments to the Act. Clearly the Secretary would violate her statutory duties were she simply to decide not to make any determination at all about a foreign country’s social insurance system. Such a decision would capriciously deprive individuals such as appellant, whose husband worked for more than ten years in this country and contributed regularly during that period to social security, of their statutory entitlements. Yet in light of current relations between this country and Iran, the Secretary’s insistence on “contact” between the governments is tantamount to a decision to do nothing. Five years have passed since the Iranian revolution and still the Secretary has not been able to make the relatively ordinary and routine determination of the state of Iranian law. The Secretary’s approach to this question puts those nonresident aliens whom Congress entitled" }, { "docid": "2089854", "title": "", "text": "Laird, 426 F.2d 424 (2d Cir. 1970), it was held that the failure of the Army to follow its own regulations was enough to support the writ of mandamus and that the disapproval of an application for a hardship discharge was arbitrary and irrational rather than within the discretion of the military authority. In Nixon v. Secretary of Navy, 422 F.2d 934, 939 (2d Cir. 1970), it was said as to the military, “there are certain limitations to this ‘hands-off’ policy, and official military conduct may go so far beyond the limits of what may be considered a rational exercise of discretion as to call for mandamus.” Long before the enactment of the present statute, Chief Justice Taft spoke to the ministerial-discretionary dichotomy: Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he lias. Work v. United States ex rel. Rives, 207 U.S. 175, 177, 45 S.Ct. 252, 09 L.Ed. 561 (1925). Compare the excerpt from Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narc., 409 F.2d 718, 723, (2d Cir. 1969), rev’d on other grounds, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) : Few more unseemly sights for a democratic: country operating under a system of limited governmental power can be imagined than the specter of its courts standing powerless to prevent a clear transgression by the government of a constitutional right of a person with standing to assert it. See also: Dash v. Commanding General, 307 F.Supp. 849 (D.S.C.1969), aff’d, 429 F.2d 427 (4th Cir. 1970) (mandamus jurisdiction apparently assumed); Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970) (mandamus available against a district judge to prevent prior restraint of first amendment freedom" }, { "docid": "12840257", "title": "", "text": "2778, 81 L.Ed.2d 694 (1984), because the agency’s interpretation of the statute reflects a reasonable construction of 39 U.S.C. § 3626(j)(l)(B). In particular, the Postal Service contends that, in reviewing whether the agency exceeded its statutory authority in construing the statute, we must confine our inquiry to the question whether the regulation “on its face” violates § 3626(j), and accordingly must limit our analysis to the first (“intent of Congress is clear”) step of Chevron and not venture into Chevron’s, second (“permissible construction”) step. Appellant’s Br. 25-26. Appellant contends that this is so because the appropriate scope of review is something akin to “that appropriate in mandamus actions,” Nat’l Ass’n of Postal Supervisors v. USPS, 602 F.2d 420, 432 (D.C.Cir.1979) (“National Association’’). Appellant’s Br. 2-26. In National Association, which was decided prior to Chevron, we held that Congress’ intent to vest in the Postal Service broad discretion in setting employee compensation and benefits and to limit judicial oversight of the exercise of that discretion did not mean that the Postal Service’s decisions were “entirely insulated from judicial surveillance. Courts can defer to the exercise of administrative discretion on internal management matters, but they cannot abdicate their responsibility to insure compliance with congressional directives setting the limits on that discretion.” National Association, 602 F.2d at 432. With respect to the matter at issue in this case - the scope of review of Postal Service constructions of PRA - we held that “[t]he judicial role is to determine the extent of the agency’s delegated authority and then determine whether the agency has acted within that authority.” Id. We “owe a measure of deference to the agency’s own construction of its organic statute, but the ultimate responsibility for determining the bounds of administrative discretion is judicial.” Id. at 432-33 (citations omitted). National Association thus appears almost as a harbinger of Chevron. Under Chevron, “if the intent of Congress is clear,” the court “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781. If “Congress has not directly addressed the precise question at issue,” and" }, { "docid": "3423222", "title": "", "text": "is no room for the exercise of discretion the performance being required by direct and positive command of the law.” 52 Am.Jur.2d Mandamus § 80, at 403 (1970). Finally, under traditional formulations, mandamus is available only “where the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command . . ..” Wilbur v. United States, 281 U.S. 206, 218, 50 S. Ct. at 324 (1930). See McGaw v. Farrow, 472 F.2d 952, 956 (4th Cir. 1973). However the standards are phrased, the critical issue underlying the writ of mandamus is whether the defendant has a duty to do a particular act, or, if he has discretion to choose among different courses of action, whether he has acted within that range of discretion. This proposition was stated by the Supreme Court in a widely quoted passage defining the scope of mandamus: Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. at 252 (1925). The Supreme Court continued, The power of the court to intervene, if at all, thus depends upon what statutory discretion he has. Under some statutes, the discretion extends to a final construction by the officer of the statute he is executing. No court in such a case can control by mandamus his interpretation, even if it may think it erroneous. The eases range, therefore, from such wide discretion as that just described to eases where the duty is purely ministerial, where the officer can do only one thing which on refusal he may be compelled to do. They begin on one side with Kendall v. United States, 12 Pet. 524 .. On the other side is Decatur v. Paulding, Secretary of" }, { "docid": "23665443", "title": "", "text": "of 1962, 28 U.S.C. § 1361 (1988), and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1988). A Assuming the facts to be as alleged, mandamus is an appropriate means of compelling the INS to schedule Soler’s deporta tion hearing in a manner consistent with Section 701. Mandamus may not be used to instruct an official how to exercise discretion. See e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170-71, 2 L.Ed. 60 (1803); Wilmot v. Doyle, 403 F.2d 811, 816 (9th Cir.1968). Mandamus is appropriate when an official’s duty to act is ministerial in nature and so plain as to be free from doubt. Moose v. United States, 674 F.2d 1277, 1284 (9th Cir.1982); Elliott v. Weinberger, 564 F.2d 1219, 1226 (9th Cir.1977). This does not mean an official’s conduct is unreviewable because the official’s responsibilities are in some respects discretionary. As the Supreme Court has long recognized, a “duty may be discretionary within limits. [The official] can not transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them.” Work v. U.S. ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925) (Taft, C.J.). Thus, the “extent [of the officer’s discretion] and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose.” Id. at 178, 45 S.Ct. at 253. “ ‘In other words, even in an area generally left to agency discretion, there may well exist statutory or regulatory standards delimiting the scope or manner in which such discretion can be exercised. In these situations, mandamus will lie when the standards have been ignored or violated.’ ” Carpet, Linoleum and Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564, 566 (10th Cir.1981) (quoting Davis Associates, Inc. v. Secretary, Dep’t of Hous. and Urban Dev., 498 F.2d 385, 389 n. 5 (1st Cir. 1974)). The cases of Ganem v. Heckler, 746 F.2d 844 (D.C.Cir.1984), and Commonwealth of Pennsylvania v. National Ass’n of Flood Insurers, 520 F.2d 11 (3d Cir.1975), are illustrative." }, { "docid": "3330202", "title": "", "text": "within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he has. . [The] extent [of administrative discretion] and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose. Id. at 177-78, 45 S.Ct. at 252-253. Pursuing this line of inquiry does not import into this nonstatutory review proceeding the now discredited discretionary/ministerial dichotomy that has occasionally plagued mandamus analysis. Rather it involves a straightforward question of statutory interpretation. The judicial role is to determine the extent of the agency’s delegated authority and then determine whether the agency has acted within that authority. In this as in other settings, courts owe a measure of deference to the agency’s own construction of its organic statute, see Train v. Natural Resources Defense Council, 421 U.S. 60, 87, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), but the ultimate responsibility for determining the bounds of administrative discretion is judicial, see National Treasury Employees Union v. Nixon, supra, 492 F.2d at 606. Viewed from this perspective, the Associations’ complaints, considered as one, claim' that the Postal Service exceeded its discretion \\ in two respects. The Associations premise their first claim on the “adequate and reasonable differential” requirement of section 1004(a). On their reading of the statute, this section obligates the Postal Service to increase the salaries of all supervisory and other managerial personnel as much or more than the increases granted to the rank-and-file workers. They appear to contend that this requires the Postal Service to maintain a salary differential of 25% or more. The Associations urge that in enacting section 1004(a) Congress intended such a differential to be binding on the agency, and that the Postal Service initially regarded itself as so bound. The Associations premise their second claim on the “participate directly” requirement of section 1004(b). In this connection they concede that their representatives met with representatives of the Postal Service regarding the proposed 1975 salary increases, but the Associations" }, { "docid": "3423223", "title": "", "text": "discharge of which by law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. at 252 (1925). The Supreme Court continued, The power of the court to intervene, if at all, thus depends upon what statutory discretion he has. Under some statutes, the discretion extends to a final construction by the officer of the statute he is executing. No court in such a case can control by mandamus his interpretation, even if it may think it erroneous. The eases range, therefore, from such wide discretion as that just described to eases where the duty is purely ministerial, where the officer can do only one thing which on refusal he may be compelled to do. They begin on one side with Kendall v. United States, 12 Pet. 524 .. On the other side is Decatur v. Paulding, Secretary of the (1) a clear rigiit in the plaintiff to the relief sought; (2) a clear duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available. Navy, 14 Pet. 497 . . .. Between these two early and leading authorities illustrating the extremes are decisions in which the discretion is greater than the Kendall Case and less than in the Decatur Case, and its extent and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose. Id. at 177-78, 45 S.Ct. at 252. As the quoted passage indicates, judicial review of an administrator’s statutory interpretation may be very limited, since interpretation of the statute (and development of its policies) may itself be committed to agency judgment. In this vein, the Supreme Court stated in Panama Canal Co. v. Grace Line, Inc., [W]here the duty to act turns on matters of doubtful or highly debatable inference from large or loose statutory terms, the very construction of" }, { "docid": "21976860", "title": "", "text": "of the officer’s discretion, for that discretion is circumscribed by constitutional, statutory, and regulatory strictures. It has been suggested by especially qualified commentators that any act of a federal officer which exceeds his statutory or regulatory function, and which must be remedied by affirmative action, should be reviewable on the basis of the statutory mandamus jurisdiction. See Byse and Fioeca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatutory” Judicial Review of Federal Administrative Action, 81 Harv.L. Rev. 308 at 355 and n. 99 (1967). As was stated by Chief Justice Taft in Work v. United States ex rel. Rives, 267 U.S. 175 at 177-178, 45 S.Ct. 252, 69 L. Ed. 561 (1925) Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he has * * * (The) extent (of the officer’s discretion) and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose. Conceding even that the statutory and regulatory provisions governing the Director of the Peace Corps with respect to employee termination, 22 U.S.C. §§ 2503(b), 2504(i), and governing Local Board No. 3 with respect to classification, 50 U.S.C. App. § 456(h) (2), 32 C.F. R. §§ 1622.22, 1622.23, vest the Director and the Board, respectively, with discretion, nevertheless, if these defendants,-in exercising that discretion, violated the constitutional rights of the plaintiff, they cannot avoid § 1361 jurisdiction. JuS as federal officers are not immune from suit where they exceed their powers and violate the Constitution, so also arej they susceptible of suit under § 12 when they exceed their powers and violate the Constitution. See Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966)," }, { "docid": "21976861", "title": "", "text": "keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he has * * * (The) extent (of the officer’s discretion) and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose. Conceding even that the statutory and regulatory provisions governing the Director of the Peace Corps with respect to employee termination, 22 U.S.C. §§ 2503(b), 2504(i), and governing Local Board No. 3 with respect to classification, 50 U.S.C. App. § 456(h) (2), 32 C.F. R. §§ 1622.22, 1622.23, vest the Director and the Board, respectively, with discretion, nevertheless, if these defendants,-in exercising that discretion, violated the constitutional rights of the plaintiff, they cannot avoid § 1361 jurisdiction. JuS as federal officers are not immune from suit where they exceed their powers and violate the Constitution, so also arej they susceptible of suit under § 12 when they exceed their powers and violate the Constitution. See Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966), Long v. Katzenbach, 258 F.Supp. 89 (N. D.Pa.1966). See also 81 Harv.L.Rev., supra at 349. It is significant that this approach to mandamus jurisdiction to review administrative action has been exemplified in a recent, well-received, see 81 Harv.L.Rev., supra at 351-353, decision of the First Circuit. Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965). While the Ashe case is not, on its facts, wholly dispositive of the instant case, it does indicate the approach to be taken to a problem of this sort. It should, then, be the approach of this court to examine the actions of the defendants to determine whether they transgressed plaintiff’s rights under the Constitution. If they did so, then mandamus will issue as to them. In this respect, it will appear subsequently that as to Local Board No. 3, the State Director of Selective Service, and the Director of the Peace Corps, mandamus will be shown to be a sufficient jurisdictional predicate. Compare Carey v. Local Board No. 2, 297 F.Supp. 252 (D. Conn. Feb. 13, 1969) with Guffanti" }, { "docid": "10264367", "title": "", "text": "case at bar, housing. If an interest in food is sufficient for standing so too must be shelter. Having satisfied the two requisite elements the plaintiffs have standing to bring the action at bar. B. JURISDICTION-28 U.S.C. § 1361. Plaintiffs allege jurisdiction under § 1(a) of the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361 which provides, to wit: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. This Statute grants to all federal district courts the power to issue mandamus against federal officials. Prior to its passage as a result of two early Supreme Court decisions, McIntire v. Wood, 11 U.S. (7 Cranch) 504, 3 L.Ed. 420 (1813) and Kendall v. United States ex rel. States, 37 U.S. (12 Pet.) 524, 9 L.Ed. 1181 (1838), only the federal district court for the District of Columbia had mandamus jurisdiction, Marshall v. Crotty, 185 F.2d 622 (1st Cir. 1951). This Statute was not intended to enlarge or alter the scope of mandamus as it had been previously exercised in the District of Columbia but merely to broaden venue of mandamus relief. Sprague Electric Co. v. Tax Court of United States, 230 F.Supp. 779 (D.C.Mass.1964) affirmed 340 F.2d 947 (1st Cir. 1965). In Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561 (1925), Chief Justice Taft noted the scope of Mandamus when he stated at 177-178, 45 S.Ct. at 252: Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He can not transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. This approach to mandamus has been followed elsewhere notably in Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503" }, { "docid": "3330200", "title": "", "text": "employees is consistent with the traditional reluctance of courts to scrutinize lawful agency decisions on internal management matters. See, e.g., National Treasury Employees Union v. Campbell, supra, 589 F.2d at 679; Wheelabrator Corp. v. Chaffee, 147 U.S.App.D.C. 238, 241, 455 F.2d 1306, 1309 (1971); cf. Kuhl v. Hampton, 451 F.2d 340, 342 (8th Cir. 1971) (per curiam); Leber v. Canal Zone Central Labor Union & Metal Trades Council, 383 F.2d 110, 118 (5th Cir. 1967), cert. denied, 389 U.S. 1046, 88 S.Ct. 769, 19 L.Ed.2d 838 (1968). This deference derives from two well-considered and complementary principles: that administrative agencies must be free from undue encumbrances to perform wholly managerial functions assigned to them by Congress, and that courts are ill-equipped to run the administrative agencies of government. See generally K.C. Davis, Administrative Law § 28.16 at 82 (1958). That deference is appropriate here. C That the Postal Service has broad discretion in setting compensation levels does not mean, however, that its decisions are entirely insulated from judicial surveillance. Courts can defer to the exercise of administrative discretion on internal management matters, but they cannot abdicate their responsibility to insure compliance with congressional directives setting the limits on that discretion. Reviewability and the scope of review are two separate questions. The history of the Postal Act indicates that Congress contemplated a very restricted judicial role in the Postal Service’s compensation decisions. It does not present the kind of evidence necessary to foreclose review altogether. The scope of review in this case and the resulting judicial task mimic that appropriate in mandamus actions. Chief Justice Taft’s opinion for the Court in Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561 (1925), explained the boundaries of judicial involvement in that context in this way: [Mandamus] can not be used to compel or control a duty in the discharge of which by law [an administrative officer] is given discretion. The duty may be discretionary within limits. He can not transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep" }, { "docid": "8723012", "title": "", "text": "of 1984. There are no further administrative routes of appeal open to appellant; other than awaiting the Secretary’s determination as to the content of Iranian law — precisely the thing which Ganem claims that she should not have to do in light of the statute’s commands — there is nothing Ganem can do. The government does not contest the point that mandamus is appellant’s only potential remedy. We turn, then, to the requirements that the plaintiff have a clear right to relief and that the defendant owe a plain and nondiscriminatory duty. The effort over the years to give content to these standards has perhaps sown more confusion than coherence, see L. Jaffe, Judicial Control of Administrative Action 181 (1965); 3 K. Davis, Administrative Law Treatise 356 (1958), but the most lucid analysis, in our view, remains that offered by Chief Justice Taft nearly sixty years ago: Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of the court to intervene, if at all, thus depends upon what statutory discretion he has ____ [The] extent [of the officer’s discretion] and the scope of judicial action in limiting it depend upon a proper interpretation of the particular statute and the congressional purpose. Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561 (1925) (emphasis added). The central issue in every mandamus case must be the “proper interpretation of the particular statute and the congressional purpose.” See W. Gellhorn, C. Byse, & P. Strauss, Administrative Law 923 (1979). Applying this principle to Ganem’s claims, we believe mandamus is warranted to compel the Secretary to adopt realistic means for determining the content of Iranian law but is not appropriate to order the Secretary to resume benefit payments pending that determination. The Secretary’s" }, { "docid": "21976859", "title": "", "text": "the Peace Corps so that those records indicate that, but for the unconstitutional action of the Peace Corps and of the Selective Service System, plaintiff would have completed his term of appointment. Additionally, plaintiff seeks a mandatory order to the State Director of Selective Service and to Local Board No. 3 to reclassify plaintiff II-A from the time he was expelled from the Peace Corps to the time he would, in the normal course, have ended his term of appointment with the Corps. As to these defendants, plaintiff contends that 28 U.S.C. § 1361 is a sufficient jurisdictional predicate for the mandatory relief he seeks. These defendants argue, contrariwise, that no mandamus jurisdiction exists here because the acts sought to be' reviewed, namely, termination from Peace Corps employment and classification by the Selective Service System, are “discretionary” acts, and because 28 U.S.C. § 1361 does not reach “discretionary” acts of government agents. Unquestionably, mandamus will not compel an officer to do a “discretionary” act. Yet, the pivotal inquiry must be directed at the permissible scope of the officer’s discretion, for that discretion is circumscribed by constitutional, statutory, and regulatory strictures. It has been suggested by especially qualified commentators that any act of a federal officer which exceeds his statutory or regulatory function, and which must be remedied by affirmative action, should be reviewable on the basis of the statutory mandamus jurisdiction. See Byse and Fioeca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatutory” Judicial Review of Federal Administrative Action, 81 Harv.L. Rev. 308 at 355 and n. 99 (1967). As was stated by Chief Justice Taft in Work v. United States ex rel. Rives, 267 U.S. 175 at 177-178, 45 S.Ct. 252, 69 L. Ed. 561 (1925) Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He cannot transgress those limits, and if he does so, he may be controlled by injunction or mandamus to" }, { "docid": "10264368", "title": "", "text": "(1st Cir. 1951). This Statute was not intended to enlarge or alter the scope of mandamus as it had been previously exercised in the District of Columbia but merely to broaden venue of mandamus relief. Sprague Electric Co. v. Tax Court of United States, 230 F.Supp. 779 (D.C.Mass.1964) affirmed 340 F.2d 947 (1st Cir. 1965). In Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561 (1925), Chief Justice Taft noted the scope of Mandamus when he stated at 177-178, 45 S.Ct. at 252: Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He can not transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. This approach to mandamus has been followed elsewhere notably in Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958) wherein the respondent contended that the type of military discharge received by the petitioner was exclusively an administrative procedure and the courts were without jurisdiction to review the decision. The Court, disagreeing with this position, stated at pp. 581-582, 78 S.Ct. at p. 435: Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers. American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108 [23 S.Ct. 33, 47 L.Ed. 90]; Philadelphia Co. v. Stimson, 223 U.S. 605, 621-622 [32 S.Ct. 340, 56 L.Ed. 570]; Stark v. Wickard, 321 U.S. 288, 310 [64 S.Ct. 559, 88 L.Ed. 733]. The District Court had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the respondent did exceed his powers. If he did so, his actions would not constitute exercises of his administrative discretion, and, in such circumstances as those before us, judicial relief from this illegality would be available." }, { "docid": "23437467", "title": "", "text": "consider a suit by Black Muslim inmates to compel accommodation of worship services and service of at least one pork-free meal a day); Taylor v. Blackwell, 418 F.2d 199 (5th Cir.1969) (holding that § 1361 provided jurisdiction over a federal inmate’s claim alleging wrongful denial of good-time credits) (citing Walker v. Blackwell, 360 F.2d 66 (5th Cir.1966)). We endorse this practice for challenges to the failure of prison officials to carry out nondiscretion-ary duties. Mandamus relief is available only to compel a government officer to perform a duty that is “ministerial, clearly defined, and peremptory” as opposed to duties within the officer’s discretion. Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564, 566 (10th Cir.1981) (quoting Schulke v. United States, 544 F.2d 453, 455 (10th Cir.1976)). But the fact that an official’s duty entails some discretion does not necessarily shield him from mandamus. As Chief Justice Taft explained, Mandamus issues to compel an officer to perform a purely ministerial duty. It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. The duty may be discretionary within limits. He can not transgress those limits, and if he does so, he may be controlled by injunction or mandamus to keep within them. The power of thé court to intervene, if at all, thus depends upon what statutory discretion he has. ' Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925). Mr. Simmat’s claim falls within this domain. His claim is not one to control or override the discretion of the prison dentists, but simply to be examined by the dentists and to receive whatever care they believe is necessary in their professional judgment, and under the Eighth Amendment. See Complaint, R. Doc. 1 at 5-6. This is not to sáy that Mr. Simmat is entitled to the full measure of relief demanded in his complaint, namely, an order “specifying that all of plaintiffs dental deficiencies be made good, whether or not procedures required to accomplish that" }, { "docid": "12840258", "title": "", "text": "from judicial surveillance. Courts can defer to the exercise of administrative discretion on internal management matters, but they cannot abdicate their responsibility to insure compliance with congressional directives setting the limits on that discretion.” National Association, 602 F.2d at 432. With respect to the matter at issue in this case - the scope of review of Postal Service constructions of PRA - we held that “[t]he judicial role is to determine the extent of the agency’s delegated authority and then determine whether the agency has acted within that authority.” Id. We “owe a measure of deference to the agency’s own construction of its organic statute, but the ultimate responsibility for determining the bounds of administrative discretion is judicial.” Id. at 432-33 (citations omitted). National Association thus appears almost as a harbinger of Chevron. Under Chevron, “if the intent of Congress is clear,” the court “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781. If “Congress has not directly addressed the precise question at issue,” and the agency has acted pursuant to an express or implied delegation of authority, the agency’s statutory interpretation is entitled to deference, as long as it is reasonable. Id. at 843-44, 104 S.Ct. at 2782. Although an agency manual often may not purport to carry the force of law, see Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 1662-63, 146 L.Ed.2d 621 (2000); United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 2170-71, 150 L.Ed.2d 292 (2001) (holding that Chevron deference is due only when the agency acts pursuant to “delegated authority” and the agency action has the “force of law”), the Postal Service’s disputed regulations in this case were adopted pursuant to notice and comment rulemaking and undoubtedly were intended to carry the force of law. Thus, the conditions for Chevron review are clearly met. It is unclear whether there is much of a disjunction between the tests enunciated in National Association and Chevron regarding the scope of review here. It is also unclear whether the scope of review" } ]

[ { "docid": "22657822", "title": "", "text": "U. S. 447 (1923), we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said: “The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.... Here the parties plaintiff have no such case.... [T]heir complaint... is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess.” Id., at 488-489. In Ex parte Lévitt, 302 U. S. 633 (1937), we dismissed a suit contending that Justice Black’s appointment to this Court violated the Ineligibility Clause, Art. I, §6, cl. 2. “It is an established principle,” we said, “that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.” 302 U. S., at 634. See also Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 433-434 (1952) (dismissing taxpayer action on the basis of Mellon). More recent cases are to the same effect. In United States v. Richardson, 418 U. S. 166 (1974), we dismissed for lack of standing a taxpayer suit challenging the Government’s failure to disclose the expenditures of the Central Intelligence Agency, in alleged violation of the constitutional requirement, Art. I, § 9, cl. 7, that “a regular Statement and Account of the Receipts and" } ]

[ { "docid": "11501500", "title": "", "text": "variety of its possible constructions and applications. The amount and type of state involvement with voluntary student prayer is unforeseeable because invocation of the statute depends not on the state but on private students. It would be ludicrous to assert, and the panel did not attempt to do so, that there “is no set of circumstances” under which the Mississippi prayer statute can be upheld. Salerno, supra. In fact, the court conceded the statute’s validity as applied to graduation prayers pursuant to Jones v. Clear Creek ISD, 977 F.2d 963 (5th Cir.1992), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993), and it must be constitutional to facilitate student prayer as permitted in Doe v. Duncanville II, supra. Critically, holding the statute not facially invalid or deferring consideration of facial validity is a different matter than facially upholding it across the board in every possible way. Only experience with the statute would tell whether it fulfills the promise of empowering student-initiated free speech/ free exercise of religion or is misused to compel state-sponsored prayer. The panel’s decision to strike down the entire statute preemptively expanded its authority at the expense of the legislature and unwarrantedly limited the legislature’s flexibility to run Mississippi’s schools. IV. Why This Case Matters This case matters because it breaches the limits of judicial authority to achieve results that are offensive to religious liberty and the sound upbringing of our children. The panel’s departures from standard rules of judicial restraint have been explained above. It has long been thought prudent, indeed obligatory, for a court to avoid discussing difficult but unnecessary constitutional issues. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944). Here, neither plaintiffs’ lack of standing nor trepidation over a premature declaration of facial invalidity persuaded the panel to forebear. But beyond the errors of judicial craft lies a deeper significance. The panel’s decision is the latest in a long line of cases whose inevitable consequence has been to remake society in a secular image. Two examples suffice: courts have held that" }, { "docid": "11501491", "title": "", "text": "there was no evidence in the district court as to how or when the statute might be invoked. Rather than admit that construing this statute depends upon private, not state action, the Fifth Circuit found guilt by mischar-acterization. Relying on conclusional statements of school officials and the “enormous interest in prayer” related to the Bishop Knox suspension, the court declares, “[i]mplementation of the statute would inevitably lead to improper state involvement in school prayer” and would require school officials “to decide who prays” and to monitor prayers’ content. Ingebretsen v. Jackson Public School District, 88 F.3d 274, 278 (5th Cir.1996). The court assumes that prayers may even be given by teachers, administrators or clergy, that attendance will be compulsory and non-attendants punished. Id. at 279. These conclusions are not based on any facts but solely on predictions and hypothetical spawned by a broadly drafted statute. Once the panel accepted this mistaken impression of state control over the prayers, its result was predictable. The panel deployed three “tests” that the Supreme Court has used to determine the parameters of the Establishment Clause. Although one of these tests has been repeatedly discredited but not overruled, and the other two have never been fully adopted or explained, they were deemed sufficient to the panel’s task of holding the school prayer statute qua “state prayer statute” unconstitutional. Unfortunately, its blow struck not just the mythical ogre of state-sponsored prayer but the sincere, praiseworthy desire of students to join in prayers of their own making. II. Case or Controversy Limits— Standing/Ripeness The panel first went wrong by concluding that the plaintiffs had standing to sue to invalidate the school prayer statute. Standing is the Article III ease or controversy requirement that a plaintiff assert injury in order to sue in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The doctrine of standing implements a fundamental principal of judicial restraint. As Justice Powell observed, “relaxation of standing requirements is directly related to the expansion of judicial power.” United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct." }, { "docid": "11501492", "title": "", "text": "the parameters of the Establishment Clause. Although one of these tests has been repeatedly discredited but not overruled, and the other two have never been fully adopted or explained, they were deemed sufficient to the panel’s task of holding the school prayer statute qua “state prayer statute” unconstitutional. Unfortunately, its blow struck not just the mythical ogre of state-sponsored prayer but the sincere, praiseworthy desire of students to join in prayers of their own making. II. Case or Controversy Limits— Standing/Ripeness The panel first went wrong by concluding that the plaintiffs had standing to sue to invalidate the school prayer statute. Standing is the Article III ease or controversy requirement that a plaintiff assert injury in order to sue in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The doctrine of standing implements a fundamental principal of judicial restraint. As Justice Powell observed, “relaxation of standing requirements is directly related to the expansion of judicial power.” United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 2952, 41 L.Ed.2d 678 (1974) (Powell, J., concurring). A court’s decisions are hypothetical or advisory if a case presents no injury to repair. Dispense with injury, and judges may be advisors or revisers of the legislature, but they are no longer deciding live cases or controversies. Their role has expanded, their jurisdiction has drastically increased if the standing requirement diminishes. In three ways, one could assert “injury” to the plaintiffs who sued to invalidate the Mississippi school prayer statute. Although neither the plaintiffs nor the court relied on two of the assertions, they illuminate the evanescence of the notion of injury employed by the court. First, some of the plaintiffs are parents and students in Jackson, Mississippi public schools. Status alone, however, hardly connotes injury. A plaintiff must be so situated to the constitutional violation as to have suffered real and immediate injury, traceable to the defendant’s conduct. In consequence, no parent ought to be allowed to sue over a school policy with which he disagrees unless the policy has demonstrably injured him or" }, { "docid": "23216625", "title": "", "text": "to expand the purview of the court’s constitutionality analysis to an entire code or ordinance even if the plaintiff was injured under one narrow provision, eliminates the need to engage in the severability analysis as required by New York. D. Conclusion In sum, the Tanner panel opinion’s conclusion that the overbreadth doctrine allows a litigant who was only injured under § A-l of a statute also to challenge § A-2 or even all of § A of a statute is incorrect, as is its conclusion that Clearwater represented a departure from prior Eleventh Circuit precedent. While Article III determines which statutory provisions may be challenged (i.e., the ones under which the plaintiff was injured), the overbreadth doctrine determines what arguments the plaintiff can make about those provisions (i.e., “as applied” or facial unconstitutionality). While society may be helped by increased judicial review of statutes that affect speech, society will not be better served in the long-run under an expansive application of the overbreadth doctrine. Article III injury-in-fact requirements are designed to provide the court with the most vigorous litigant who has the incentive to accurately present the court with the appropriate issues and arguments. A litigant who has not been injured under a particular provision may not have the appropriate incentive or understanding of the provision’s effects to litigate fully those provisions. Allowing such a challenge may result in precedent being established that actually harms society at large. Moreover, standing is properly regarded as a doctrine of judicial self-restraint. As Justice Powell observed, “[rjelaxation of standing requirements is directly related to the expansion of judicial power.” United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 2952, 41 L.Ed.2d 678 (1974). As the Court has frequently emphasized, any analysis of the concept of “injury” must be based upon “reference to the Art. Ill notion that federal courts may exercise power only in the last resort, and as a necessity, and only when adjudication is consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.” Allen, 468" }, { "docid": "2336356", "title": "", "text": "the court finds itself in the position of extending its role beyond that intended for the judiciary under Article III. Allen, 468 U.S. at 750, 104 S.Ct. at 3324. Second, the standing requirement improves judicial decision-making because it “assures a factual setting in which the litigant asserts a claim of injury in fact[.]” Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. This factual setting prevents a federal court from passing judgment on ill-defined issues or controversies which could “pave the way for lawsuits which have some, biit not all, of the facts of the case actually decided by the court.” Id. In other words, the injury complained of must be sufficiently concrete to inform the court of the consequences of its decision. Indeed, the Supreme Court has recognized that judicial review is effective largely because it avoids issues presented in an abstract form. United States v. Richardson, 418 U.S. 166, 194, 94 S.Ct. 2940, 2956, 41 L.Ed.2d 678 (1974) (Powell, J., concurring). Third, the standing requirement assures that the federal courts do not become “a vehicle for the vindication of the value interests of concerned bystanders.” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973). The federal courts are reserved for litigants whose lives will be directly affected by the outcome of the lawsuit. And, the injury-in-fact requirement serves to distinguish those litigants from others with a mere interest in the issue. Id., at 689 n. 14, 93 S.Ct. at 2417 n. 14. Without this requirement, the federal courts would be reduced to “publicly funded forums for the ventilation of public grievances[.]” Valley Forge, 454 U.S. at 473, 102 S.Ct. at 759. Connected with this policy, of course, is the notion that those directly concerned with the questions at issue are likely to present their eases more effectively. In this lawsuit, the objectors claim that many of the members of the Carlough class do not have Article III standing because they have not sustained an “injury in fact.” The objectors note that the Carlough class includes" }, { "docid": "11501493", "title": "", "text": "2940, 2952, 41 L.Ed.2d 678 (1974) (Powell, J., concurring). A court’s decisions are hypothetical or advisory if a case presents no injury to repair. Dispense with injury, and judges may be advisors or revisers of the legislature, but they are no longer deciding live cases or controversies. Their role has expanded, their jurisdiction has drastically increased if the standing requirement diminishes. In three ways, one could assert “injury” to the plaintiffs who sued to invalidate the Mississippi school prayer statute. Although neither the plaintiffs nor the court relied on two of the assertions, they illuminate the evanescence of the notion of injury employed by the court. First, some of the plaintiffs are parents and students in Jackson, Mississippi public schools. Status alone, however, hardly connotes injury. A plaintiff must be so situated to the constitutional violation as to have suffered real and immediate injury, traceable to the defendant’s conduct. In consequence, no parent ought to be allowed to sue over a school policy with which he disagrees unless the policy has demonstrably injured him or his child. Recognizing the frailty of this position, plaintiffs did not assert that then-status alone conferred standing. Second, the panel found standing because the statute makes “inappropriate government involvement in religious affairs inevitable.” Ingebretsen, 88 F.3d at 278 (quoting Karen B. v. Treen, 653 F.2d 897, 902 (5th Cir.1981), affirmed, 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455 (1982)). Inevitability, like status, may suggest incipient injury, but it does not reflect an extant fact of injury. Moreover, this conclusion of inevitability reflects the panel’s confusion of student-initiated prayers with state-controlled prayers. The Mississippi prayer statute authorizes but does not compel voluntary student-initiated prayer, and it expressly provides that it is to be construed consistent with First Amendment law. It is impossible to predict when or how the statute might be invoked by students. Because the statute never went in effect, no one testified how students would react to it. The school district had set no policies for its implementation, although contrary to the panel’s earlier assertion, the district already forbade teachers from leading or" }, { "docid": "21659506", "title": "", "text": "moved to dismiss the claims against them for plaintiffs’ failure to effect service, and I granted their motions on September 20, 2016. Klayman I, 9/20/16 Mem. Order [Dkt. # 175]; Klayman II, 9/20/16 Mem. Order [Dkt. # 120]. Because plaintiffs’ complaints have been amended several times since defendants motions for partial dismissal were filed in January of 2014, I ordered defendants to brief a renewed dispositive motion. See Klayman I, 9/20/16 Mem. Order at 4-5. The Government accordingly filed a consolidated motion to dismiss both Klayman I and Klayman II for lack of jurisdiction. The Government’s motion is now ripe for my decision. STANDARD OF REVIEW Article III of the Constitution limits the judicial power of the United States to adjudicating “cases” and “controversies.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) “Three interrelated judicial doctrines — standing, mootness, and ripeness, ensure that federal courts assert jurisdiction only over ‘[c]ases’ and ‘[controversies’ ” consistent with their authority under Article III. Williams v. Lew, 77 F.Supp.3d 129, 132 (D.D.C. 2015) (internal quotation marks omitted). Importantly here, the Supreme Court has noted that the standing inquiry is “especially rigorous when reaching the merits of the dispute wouid force [the judiciary] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). This is, of course, because “[relaxation of standing requirements is directly related to the expansion of judicial power.” United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (Powell, J., concurring). And regardless of whether a plaintiff had standing to sue when he initially filed his complaint, the doctrine of mootness bars- a federal court from adjudicating that plaintiffs claim if “events have so transpired that the [court’s] decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C." }, { "docid": "21834122", "title": "", "text": "the Court recognized, was necessarily “shared with millions of others.” Ibid. As a consequence, Frothingham held that the taxpayer-plaintiff had not presented a “judicial controversy” appropriate for resolution in federal court but rather a “matter of public . . . concern” that could be pursued only through the political process. Id., at 487-489. In a second pertinent case, Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429 (1952), the Court considered Frothingham’s prohibition on taxpayer standing in connection with an alleged Establishment Clause violation. A New Jersey statute had provided that public school teachers would read Bible verses to their students at the start of each schoolday. A plaintiff sought to have the law enjoined, asserting standing based on her status as a taxpayer. Writing for the Court, Justice Jackson reiterated the foundational role that Article III standing plays in our separation of powers. “‘The party who invokes the power [of the federal courts] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.’ ” Doremus, supra, at 434 (quoting Frotkingham, supra, at 488). The plaintiff in Doremus lacked any “direct and particular financial interest” in the suit, and, as a result, a decision on the merits would have been merely “advisory.” 342 U. S., at 434-435. It followed that the plaintiff’s allegations did not give rise to a case or controversy subject to judicial resolution under Article III. Ibid. Cf. School Dist. of Abington Township v. Schempp, 374 U. S., at 224, n. 9 (finding standing where state laws required Bible readings or prayer in public schools, not because plaintiffs were state taxpayers but because their children were enrolled in public schools and so were “directly affected” by the challenged laws). In holdings consistent with Frothingham and Doremus, more recent decisions have explained that claims of taxpayer standing rest on unjustifiable economic and political speculation. ' When a government" }, { "docid": "11501495", "title": "", "text": "organizing prayers and would not compel dissenting students to remain present. Refuting both the status theory and inevitability theory of injury, this court has held that a plaintiff who was not an elementary student in a public school district could not attack the district’s alleged policy authorizing Gideon Bible distribution in elementary schools. Doe v. Duncanville ISD, II, 70 F.3d 402 (5th Cir.1995). Standing is not ordinarily, and is certainly not in this case, an arcane concept. The panel’s fear that national publicity surrounding the Bishop Knox controversy would inspire a proliferation of student prayers under the new statute may or may not be valid, but fear of exposure to student-initiated prayers in the future is simply not injury. A third concept of standing, previously articulated only in First Amendment free speech cases, attributes injury to a plaintiffs allegation that he intends to engage in protected speech or expressive conduct that may violate a statute. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Relatedly, he may assert he is injured because the existence of the allegedly unconstitutional ordinance de ters or chills the exercise of free speech rights and causes either continuing harm or a real and immediate threat of future injury. For obvious reasons, plaintiffs asserted neither type of injury in this case. Their free speech rights were unaffected by a policy that allows voluntary, student-initiated speech which happens to be prayerful. On the contrary, the real chilling effect of the federal court’s injunction falls upon students who have now been deterred from exercising their constitutional rights of free speech, assembly and religious practice in conjunction with school events. One other way to look at the justiciability of this case is to say that the controversy is not ripe until allegedly unconstitutional regulations are promulgated under the statute or unconstitutional prayer occurs or is actually scheduled to occur. See IBA C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532.1 (1984) (ripeness serves “the central perception ... that courts should not render decisions absent a genuine need to" }, { "docid": "13699272", "title": "", "text": "government-owned property to an educational institution supervised by a religious order violated the Establishment Clause of the First Amendment, the Court stated: Although [plaintiffs] claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by the plaintiffs as a consequence of the alleged constitutional error, other than the psychological consequences presumably produced by observation of conduct with which one disagrees. This is not an injury sufficient to confer standing under Art. Ill, even though the disagreement is phrased in constitutional terms. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 485-86, 102 S.Ct. 752, 765, 70 L.Ed.2d 700 (1982) (emphasis in original). The law, of course, often takes account of psychological consequences. The Supreme Court’s refusal to do so when a plaintiff makes the serious assertion that the harm is created by the unconstitutional conduct of the government can only mean that the Court perceives that to confer standing in such cases would impermissibly alter its function. To make judicially cognizable all injuries that persons actually feel and can articulate would widen immeasurably, perhaps illimitably, the authority of the federal courts to govern the life of the society. “Relaxation of standing requirements is directly related to the expansion of judicial power.” Richardson, 418 U.S. at 188, 94 S.Ct. at 2952 (Powell, J., concurring). Conversely, by refusing to expand standing, by attempting to confine jurisdiction so far as possible to cases of a “form historically viewed as capable of judicial resolution,” Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), courts can at least attempt to keep their scope of authority constant over time and so leave the resolution of a widé variety of problems to other institutions, both public and private. All of the doctrines that cluster about Article III — not only standing but mootness, ripeness, political question, and the like — relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit" }, { "docid": "11501496", "title": "", "text": "he is injured because the existence of the allegedly unconstitutional ordinance de ters or chills the exercise of free speech rights and causes either continuing harm or a real and immediate threat of future injury. For obvious reasons, plaintiffs asserted neither type of injury in this case. Their free speech rights were unaffected by a policy that allows voluntary, student-initiated speech which happens to be prayerful. On the contrary, the real chilling effect of the federal court’s injunction falls upon students who have now been deterred from exercising their constitutional rights of free speech, assembly and religious practice in conjunction with school events. One other way to look at the justiciability of this case is to say that the controversy is not ripe until allegedly unconstitutional regulations are promulgated under the statute or unconstitutional prayer occurs or is actually scheduled to occur. See IBA C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532.1 (1984) (ripeness serves “the central perception ... that courts should not render decisions absent a genuine need to resolve a real dispute”). The court was unwilling to let events take their course under the statute and trust to the good will of students and school administrators to implement it properly. Whether the panel reached the “right” decision on some imagined exegesis of the statute is not the issue for justiciability purposes. Rather, the question is whether these plaintiffs suffered or are in imminent danger of themselves suffering injury from the mere existence of the statute, as opposed to its particular application in the future. These plaintiffs did not sufficiently demonstrate injury. The case did not present a factual, specific dispute. The court thus acted as advisor or reviser, not as adjudicator, and rendered its decision based on a wholly hypothetical, “worst-case” scenario about the application of the statute. III. Standard of Facial Invalidity As it treated the question of standing, so the panel summarily opted for the jurisprudential approach of striking down the Mississippi school prayer statute on its face, in toto, rather than deferring a constitutional law decision until the statute has" }, { "docid": "23216626", "title": "", "text": "the most vigorous litigant who has the incentive to accurately present the court with the appropriate issues and arguments. A litigant who has not been injured under a particular provision may not have the appropriate incentive or understanding of the provision’s effects to litigate fully those provisions. Allowing such a challenge may result in precedent being established that actually harms society at large. Moreover, standing is properly regarded as a doctrine of judicial self-restraint. As Justice Powell observed, “[rjelaxation of standing requirements is directly related to the expansion of judicial power.” United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 2952, 41 L.Ed.2d 678 (1974). As the Court has frequently emphasized, any analysis of the concept of “injury” must be based upon “reference to the Art. Ill notion that federal courts may exercise power only in the last resort, and as a necessity, and only when adjudication is consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.” Allen, 468 U.S. at 752, 104 S.Ct. at 3325 (internal quotations and citations omitted). Accordingly, the narrow approach to standing that we described in Clearwater remains the law of this circuit until changed by an en banc opinion of this court. . \"A prior panel decision of this Court is binding on subsequent panels and can be overturned only by the Court sitting en banc .... When faced with an intra-circuit split we must apply the 'earliest case' rule, ... a panel should look to the line of authority containing the earliest case, because a decision of a prior panel cannot be overturned by a later panel.” Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir.2003) (internal quotations and citations omitted). . For example, the panel expressly disclaims that it is invalidating the ordinance in its entirety, see St. Petersburg, 348 F.3d at 1283, which suggests (at best) that the plaintiff may have had standing to challenge the ordinance in its entirety. . To be sure, by abrogating the prudential standing limitations, legislative actions and judicial" }, { "docid": "387271", "title": "", "text": "desegregated public schools. The Court found that neither allegation of injury was sufficient to confer standing. The Court emphasized that the constitutional limitations on standing to sue in federal courts derive from the principle of separation of powers, stating that doctrines developed to elaborate upon the cases and controversies requirement are “founded in concern about the proper — and properly limited — role of the courts in a democratic society.” Id. at 750, 104 S.Ct. at 3324 (quoting Warth v. Selden, 422 U.S. at 498, 95 S.Ct. at 2205). Thus, the proper role of the courts in a scheme of government based in part on the separation of powers principle is preserved by a requirement, as a prerequisite to standing, that a person demonstrate a distinct and palpable injury that is personal to the would-be litigant. On the other hand, the Court “has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Id. at 754, 104 S.Ct. at 3326. Allen v. Wright echoes the concerns expressed by Justice Powell, concurring in United States v. Richardson: Relaxation of standing requirements is directly related to the expansion of judicial power. It seems to me inescapable that allowing unrestricted taxpayer or citizen standing would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government. I also believe that repeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches. 418 U.S. at 188, 94 S.Ct. at 2952 (footnote omitted). IY. There are very few decisions concerning standing of state taxpayers to sue in federal court where the Establishment Clause is not an issue. This is not the case with respect to municipal taxpayers. In" }, { "docid": "23390245", "title": "", "text": "courts in a democratic society.’” Id. at 750, 104 S.Ct. at 3324 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975)). “All of the doctrines that cluster about Article III—not only standing but mootness, ripeness, political question, and the like—relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers-of an nneleeted, unrepresentative judiciary in our kind of government.” Id. (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C.Cir.1983) (Bork, J., concurring)). Because Plaintiffs have invoked Article III jurisdiction to challenge the conduct of the executive branch of government, the necessity of a case or controversy is of particular import. See Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 804 (11th Cir.1993). The warnings against unrestrained exercise of the power of judicial review over the conduct of the executive or congressional branches by relaxation of the standing requirements are numerous and dire. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 473-74, 102 S.Ct. 752, 759-60, 70 L.Ed.2d 700 (1982); United States v. Richardson, 418 U.S. 166, 188-93, 94 S.Ct. 2940, 2952-55, 41 L.Ed.2d 678 (1974) (Powell, J., concurring). Restraint in the exercise of judicial review preserves not only the power and vitality of the judiciary, but that of each of the other two coordinate branches of federal government as well. See Valley Forge, 454 U.S. at 474, 102 S.Ct. at 759-60; Richardson, 418 U.S. at 188-89, 94 S.Ct. at 2952-53. Standing to invoke the power of the federal courts is not a mere technical hoop through which every plaintiff must pass, but rather is “a part of the basic charter promulgated by the Framers of the Constitution.” Valley Forge, 454 U.S. at 476, 102 S.Ct. at 761. These principles of constitutional governance mandate strict compliance with the standing requirement. See Raines v. Byrd, — U.S. -, -, 117 S.Ct. 2312, 2317, 138 L.Ed.2d" }, { "docid": "11501506", "title": "", "text": "distinction between mere adjudication and lawmaking that Article III requires a real case or controversy, implicating standing to sue, ripeness and justiciability. A forthright sense of judicial modesty also compels such limitations on the judicial process. Neither judicial modesty nor principles of judicial restraint have been notably evident in decisions involving religion and the public schools. This case, striking down Mississippi’s attempt to accommodate students’ desire — and constitutional right — voluntarily to pray aloud at school, is a paradigm of the errors that bedevil Establishment Clause jurisprudence. The court reached out to condemn the entire statute on its face even though no plaintiff had been injured or could realistically assert standing, and even though certain constitutional applications of it are mandated by our caselaw. The court’s decision was premised not on actual facts but upon a hypothetical, worst-case application of the statute. The court dealt unsympathetically, to say the least, with the motivation for the statute, a motivation shared by the vast majority of the American people that life is more meaningful, education more dignified, morality fortified when voluntary, student-initiated prayer is permitted. It was not the court’s prerogative under traditional principles of judicial restraint to strike down this statute. I DISSENT from the denial of rehearing en banc. . Bishop Knox was the school principal who was briefly suspended for allowing students to recite a brief morning prayer over the intercom. The case received national press attention and created a big stir in Jackson. . See the “Lemon test,” from Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), nominally applied in Lamb’s Chapel v. Center Moriches Sch. Dist., 508 U.S. 384, 395 & n. 7, 113 S.Ct. 2141, 2148 & n. 7, 124 L.Ed.2d 352 (1993). Justice Scalia noted in a separate Lamb's Chapel opinion that six members of the Supreme Court as of 1993 had seriously criticized Lemon. Id. at 398, 113 S.Ct. at 2150 (Scalia, J., concurring in judgment). . The panel referred to the “coercion test,\" Lee v. Weisman, supra, and the “endorsement test,” County of Allegheny v." }, { "docid": "2336355", "title": "", "text": "complete consistency in all of the various cases decided by [the] Court which have discussed it[J” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990) (quoting Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760). The Article III policies which are served by the standing requirement, however, have remained clear and constant. It is thus helpful to look to these policies when applying the elements of standing to a particular case. First and foremost, the standing requirement preserves the separation of powers by limiting the matters that the judicial branch may address. Lujan, - U.S. at -, 112 S.Ct. at 2136; Allen, 468 U.S. at 752, 104 S.Ct. at 3325. In essence, standing doctrine is \"founded in concern about the proper-and properly limited-role of the courts in a democratic society.\" Warth, 422 U.S. at 498, 95 S.Ct. at 2205. Under our tripartite system of government, pronouncements about general social problems are left to the legislature. Thus, if a plaintiff lacks a personal stake in the litigation at hand, the court finds itself in the position of extending its role beyond that intended for the judiciary under Article III. Allen, 468 U.S. at 750, 104 S.Ct. at 3324. Second, the standing requirement improves judicial decision-making because it “assures a factual setting in which the litigant asserts a claim of injury in fact[.]” Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. This factual setting prevents a federal court from passing judgment on ill-defined issues or controversies which could “pave the way for lawsuits which have some, biit not all, of the facts of the case actually decided by the court.” Id. In other words, the injury complained of must be sufficiently concrete to inform the court of the consequences of its decision. Indeed, the Supreme Court has recognized that judicial review is effective largely because it avoids issues presented in an abstract form. United States v. Richardson, 418 U.S. 166, 194, 94 S.Ct. 2940, 2956, 41 L.Ed.2d 678 (1974) (Powell, J., concurring). Third, the standing requirement assures that the federal courts do not" }, { "docid": "13467446", "title": "", "text": "appeal. II. Plaintiffs challenge DOL’s new wage-correlation methodology, both as applied to their 1986 wagés and as applied to future USES offers. We hold that plaintiffs lack standing to challenge either application of the methodology. In Part A, we explain why plaintiffs lack standing to challenge the 1986 application of the new methodology. In Part B, we explain why they lack standing to challenge future applications of the same. A. The law of standing derives from Article III of the Constitution, which limits federal jurisdiction to actual “Cases” or “Controversies.” To establish such a Case or Controversy, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 761, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). These three requirements — personal injury, causation, and redressability — promote important adjudicative functions. First, they require each litigant to have a real stake in the outcome of the case. Thus they “assure 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); this sharpened presentation in turn helps reduce the risk of an erroneous or poorly thought-out decision. Second, they forbid the litigants to pose hypothetical questions for the court to resolve. Thus they permit the concentration of scarce judicial resources on disputes of genuine remedial consequence; this concentration again helps reduce the risk of error. Third, they require the plaintiff to plead more than a generalized dissatisfaction with a law or regulation in order to invoke the jurisdiction of the federal courts. Thus they prevent the judiciary from encroaching upon the constitutional domains of the elected branches of government. See United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 2952, 41 L.Ed.2d 678 (1974) (Powell, J., concurring) (“We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.”). In this case, plaintiffs allege" }, { "docid": "15553568", "title": "", "text": "entities that were not implicated in any constitutional violation. -U.S. at-, 96 S.Ct. at 1544, 44 LW at 4483, 4484. Applying these principles to the facts before it, the court in Gautreaux concluded that the wrong which was properly complained of by the plaintiffs below was not constitutionally insufficient to support the remedy sought; appropriateness and feasibility of remedy were of crucial importance and a prerequisite to the exercise of the courts’ equitable powers The necessity for continued adherence to the Article III requirements of standing and the proper limitations on the exercise of equity powers was underscored in Mr. Chief Justice Burger’s majority opinion in United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), in which the Court held that the taxpayer plaintiff lacked standing to sue. “As our society has become more complex, our numbers more vast, our lives more varied, and our resources more strained, citizens increasingly request the intervention of the courts on a greater variety of issues than at any period of our national development. The acceptance of new categories of judicially cognizable injury has not eliminated the basic principle that to invoke judicial power the claimant must have a ‘personal stake in the outcome,’ ... in short, something more than ‘generalized grievances,’ . . . .” 418 U.S. 166, 179-80, 94 S.Ct. 2948 (citations omitted). Concurring in the holding in Richardson, 418 U.S. at 180, 94 S.Ct. 2940, Mr. Justice Powell offered a cogent analysis of the dangers inherent in the relaxation of the historic and Constitutional restraints on judicial power; we would do well to recall his words: Relaxation of standing requirements is directly related to the expansion of judicial power. It seems to me inescapable that allowing unrestricted taxpayer or citizen standing would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government. I also believe that repeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to" }, { "docid": "22789786", "title": "", "text": "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). Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). The Constitutional standing requirements give substance to Article Ill’s grant of jurisdiction over “cases” and “controversies.” Association of Data Processing Svc. Org., Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). Federal courts have no power to entertain claims not rising to this level. Stated in terms of standing, a plaintiff must “‘allege[] such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. at 498, 95 S.Ct. at 2204 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)). The federal judiciary may not reach out to decide disputes which, although they may redress social wrongs, do not address an “injury in fact” to the plaintiff who has brought the charge before it. See Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 523, 111 S.Ct. 913, 917, 112 L.Ed.2d 1125 (1991) (citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984)). In addition to the Constitutional mandate, the “prudential” limitations placed upon the exercise of federal jurisdiction include: [(1)] the principle that federal courts should avoid deciding generalized grievances that present abstract questions of wide public significance, [ (2) ] the requirement that the plaintiffs complaint be within the zone of interests protected by the statute or constitutional guarantee at issue, and [ (3) ] the requirement that a plaintiff ... assert his own" }, { "docid": "11501494", "title": "", "text": "his child. Recognizing the frailty of this position, plaintiffs did not assert that then-status alone conferred standing. Second, the panel found standing because the statute makes “inappropriate government involvement in religious affairs inevitable.” Ingebretsen, 88 F.3d at 278 (quoting Karen B. v. Treen, 653 F.2d 897, 902 (5th Cir.1981), affirmed, 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455 (1982)). Inevitability, like status, may suggest incipient injury, but it does not reflect an extant fact of injury. Moreover, this conclusion of inevitability reflects the panel’s confusion of student-initiated prayers with state-controlled prayers. The Mississippi prayer statute authorizes but does not compel voluntary student-initiated prayer, and it expressly provides that it is to be construed consistent with First Amendment law. It is impossible to predict when or how the statute might be invoked by students. Because the statute never went in effect, no one testified how students would react to it. The school district had set no policies for its implementation, although contrary to the panel’s earlier assertion, the district already forbade teachers from leading or organizing prayers and would not compel dissenting students to remain present. Refuting both the status theory and inevitability theory of injury, this court has held that a plaintiff who was not an elementary student in a public school district could not attack the district’s alleged policy authorizing Gideon Bible distribution in elementary schools. Doe v. Duncanville ISD, II, 70 F.3d 402 (5th Cir.1995). Standing is not ordinarily, and is certainly not in this case, an arcane concept. The panel’s fear that national publicity surrounding the Bishop Knox controversy would inspire a proliferation of student prayers under the new statute may or may not be valid, but fear of exposure to student-initiated prayers in the future is simply not injury. A third concept of standing, previously articulated only in First Amendment free speech cases, attributes injury to a plaintiffs allegation that he intends to engage in protected speech or expressive conduct that may violate a statute. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Relatedly, he may assert" } ]

[ { "docid": "17167713", "title": "", "text": "at 455-56 (Bird, C.J., concurring). Thus Guglielmi does little to help us resolve whether the Lugosi holding is conditioned on non-exercise of the right during a lifetime. Resolution of this issue is vital in the instant case because all indications are that Clyde Beatty, unlike Bela Lugosi, did exercise his right of publicity during his lifetime to an extent sufficient to impose on his name a secondary meaning associated with his circus and -did validly transfer that right to another. Accordingly, if under California law the right of publicity does survive if a secondary meaning has been created during the lifetime and that interest is sold or transferred validly to another, the summary judgment must be reversed. In Groucho Marx Productions v. Day and Night Co., Inc., 689 F.2d 317 (2d Cir.1982), the Second Circuit was faced with a question similar to that before us. There the issue was whether or not the heirs of Harpo and Chico and the lifetime assignee of Groucho, inherited and retained, respectively, the Marx Brothers’ right of publicity, and whether or not use of the likeness of the Marx Brothers by defendant Day and Night Co., Inc., infringed that right of publicity. The court was required to decide whether the right of publicity survived the death of the Marx Brothers, so as to continue as a property right of their heirs and Groucho’s assignee. All three Marx brothers were domiciled in California at the time of their deaths. New York, as we have discerned California does also, applies as its choice of law rule to property issues the law of the domicile. The Second Circuit in Groucho Marx Productions therefore applied California law to decide if the right of publicity survived the deaths of the Marx Brothers, giving their heirs and assignee a valid claim for infringement of that right. In analyzing the survivability of the right of publicity in California, the Second Circuit stated: Without question, Lugosi established that California law does not recognize a de-scendible right of publicity available to the heirs of a celebrity who did not exploit his own right" } ]

[ { "docid": "16033006", "title": "", "text": "have relied, and with their premise that a public figure's persona is not copyrightable because it cannot be fixed in a tangible medium of expression. 805 F.2d at 678 n. 26. The court states that, \"Because a performance is fixed in tangible form when it is recorded, a right of publicity in a performance that has been reduced to tangible form is subject to preemption.” Id. If the point of this remark is not inconsistent with the previous footnote, and if we take it as drawing a distinction between the appropriation of a persona and unauthorized copying of one's photograph, we do not disagree. The point isn't relevant to the instant case. . The Supreme Court upheld a right of publicity action in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). There, the Court said: \"the protection [afforded by state right of publicity laws] provides an economic incentive for him to make the investment required to produce a performance of interest to the public. The same consideration underlies the patent and copyright laws.” Id. at 576, 97 S.Ct. 2849. . In fact, Roy Ames purported to transfer these rights as well as the copyright licenses. . Appellants did not make this argument in this litigation. . Appellants did not use the common law described above as a defense to the misappropriation charges. Thus, despite the fact that such a defense would seem to be applicable to some of the misappropriation claims, we cannot decide the case on those grounds or to allow it to influence our preemption analysis. . Furthermore, the several cases prior to Bonito Boats that dealt with preemption in the intellectual property field found that state laws on trade secrets and recording piracy were not preempted by the Copyright Act. See Kewanee Oil. Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974); Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). . As noted above, our conclusion might be different if Texas were to allow such suits against authorized publishers or" }, { "docid": "18890391", "title": "", "text": "The Sears-Compco decisions have been understood as holding that state regulation of unfair competition is pre-empted as to matters falling within the broad confines of the copyright clause of the United States Constitution. U.S.Const. Art. I, § 8. The language of the Court in Compco was quite specific, 376 U.S. at 237, 84 S.Ct. at 782: “Today we have held * * * that when an article is unprotected by a patent or copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy, found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.” See also Columbia Broadcasting System, Inc. v. DeCosta, 377 F.2d 315, 318-19 (1st Cir.), cert. denied, 389 U.S. 1007, 88 S.Ct. 565, 19 L.Ed.2d 603 (1967); B. H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1258-59 (5th Cir. 1971). Plaintiff urges that the Supreme Court’s decision in Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), has restricted the Sears-Compco pre-emption doctrine to only those situations where the fundamental federal policy present in the copyright laws would be harmed. Arguing that such is not the case here, plaintiff asserts its right to injunctive relief. We think plaintiff has misread and misapplied Goldstein. Goldstein presented the question of whether a state could prohibit record piracy where Congress had not yet acted in the field. That is, although copying of records was an area which fell within the perimeters of the copyright clause, no federal law had been enacted regulating the conduct in question. Goldstein merely limited Sears-Compco, holding that the copyright and supremacy clauses by themselves, in the absence of congressional expression, did not prohibit any state incursions into the area. At the same time, the Court stated: “Finally, we have concluded that our decisions in Sears and Compco, which we reaffirm today, have no application in the present case, since Congress has indicated neither that" }, { "docid": "18392135", "title": "", "text": "interfere with the system of laws passed by Congress to balance the promotion of invention and authorship while preserving free competition. The Court stated: Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents. To do either would run counter to the policy of Congress of granting patents only to true inventions, and then for only a limited time. Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws.” Sears, 84 S.Ct. at 788-89. The Court concluded that because the lighting fixtures at issue were not entitled to patent protection, their design was in the public domain and could be used by anyone choosing to do so. “ ‘Sharing in the goodwill of an article unprotected by patent or trade-mark is the exercise of a right possessed by all — and in the free exercise of which the consuming public is deeply interested.’ ” Sears, 84 S.Ct. at 789 (quoting Kellogg v. National Biscuit Co., 305 U.S. Ill, 122, 59 S.Ct. 109, 115, 83 L.Ed. 73 (1938)). Although the language in Sears and Compco was broad, the Court recognized in Compco that the patent and copyright laws did not prevent a state from imposing liability on persons seeking to wrongfully trade on the goodwill of the original manufacturer or producer. “A state of course has power to impose liability upon those who, knowing that the public is relying upon an original manufacturer’s reputation for quality and integrity, deceived the public by palming off their copies as the original.” Compco, 84 S.Ct. at 782. In Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), the Court again considered preemption analysis, this time in the context of the copyright laws. At issue in Goldstein was the power of the" }, { "docid": "13616499", "title": "", "text": "likeness.” Defendants also cite recent Supreme Court eases involving federal copyright law, Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), for the proposition that articles not protected by federal law from limitation are not otherwise protectible. We cannot agree that the federal copyright laws pre-empt a state-based right of publicity. [W]here Congress determines that neither federal protection nor freedom from restraint is required by the national interest, it is at liberty to stay its hands entirely. Since state regulation would not then conflict with federal action, total relinquishment of the States’ power to grant copyright protection cannot be inferred. Goldstein v. California, 412 U.S. 546, 559, 93 S.Ct. 2303, 2311, 37 L.Ed.2d 163 (1972). The logic of this conclusion forecloses any argument here that forms of state protection other than copyright laws are precluded by federal pre-emption. Having determined that plaintiffs here are asserting a valid property right for which protection should be afforded, we turn now to the question of whether there was any waiver of this right. First, defendants Roach and Gelbspan argue, in support of Overseas’ motion for summary judgment on its cross-claim for declaratory relief, that plaintiffs’ or their predecessors in interests’ failure to carry a statutory copyright notice on a series of cartoons embodying caricatures of Laurel and Hardy constitutes “dedication” to the public of their rights. Since we have not based plaintiffs’ rights upon any statutory copyright, however, this argument is not pertinent. Defendants Roach and Gelbspan also argue that the failure of Laurel and Hardy to “use” their caricatures and imitations between 1940 and 1954 constitutes an “abandonment.” Such an argument would appear nonsensical. It cannot be possible for Laurel and Hardy to lose rights in their own names and likenesses through “non-use.” If a person chooses not to exercise the right of publicity, there is the attendant statutory right of privacy in New York" }, { "docid": "10722632", "title": "", "text": "here has no bearing on choice of law questions presented under § 3344. Moreover, in Page, as in any case involving a plaintiff domiciled in California, reliance on § 946 would typically result in the application of California local law. . Taking a slightly different tack, plaintiffs rely on Button Master, where the court applied New York’s property choice of law rules to determine whether plaintiffs had protectible rights of publicity. Button Master, 555 F.Supp. at 1197. After stating that the law of the states in which plaintiffs or their exclusive licensees resided would control, that court concluded that Georgia law controlled with respect to the rights of publicity of residents of Great Britain who marketed themselves exclusively through a Georgia based merchandising representative. Id. Thus, in Button Master, the choice of law determination was based on the residence of the British performers’ exclusive licensee. Button Master is of no aid to plaintiffs here, however, because even if we were to look to the law of the domicile of the devisees or the situs of the Estate, all plaintiffs reside in Great Britain. . It is worth noting that New York’s choice of law rules focus on the situs of the property and, therefore, on the residence of the plaintiff, to determine whether a plaintiff has a protectible right of publicity. See Button Master, 555 F.Supp. at 1197 (citing Groucho Marx Productions v. Day & Night Co., 689 F.2d 317, 319 (2d Cir.1982)). . In Carson, the district court found that although the defendant had plainly intended to capitalize on the phrase \"Here’s Johnny,” there was little evidence of actual confusion, defendant had not intended to deceive the public into believing Carson was associated with the product, •and there was no evidence that the use damaged Carson. 698 F.2d at 833-34. . In fact, a number of courts have applied § 43(a) to claims brought by an estate or assignees of a deceased celebrity. See Estate of Presley v. Russen, 513 F.Supp. 1339, 1376 (D.NJ.1981) (concluding facts supporting finding of likelihood of success regarding likelihood of confusion also supported §" }, { "docid": "10722627", "title": "", "text": "merchandise, goods or services .... (k) ... [Ijt shall be a question of fact whether or not the use of the deceased personality's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a). .McCarthy provides a succinct summary of some of the problems that arise when the right of publicity is characterized as a property right for choice of law purposes: One obvious difficulty with the strict categorization approach of the First Restatement is that when both a tort and property theory are asserted, the law of state A might apply to the tort count and the law of state B to the property count. That is hardly a rational or efficient approach. McCarthy, Rights of Publicity and Privacy, § 11.2[B] at 11-8. For example, here, the law of Britain applies for purposes of determining whether the property right exists, California law might govern whether that right (if it existed) had been infringed, and federal law governs whether plaintiffs may assert a claim based on parallel rights under the Lanham Act. McCarthy continues: The categorization approach also presents great difficulties of characterization. If the Right of Publicity is labeled \"property,” the law of the \"situs” of property would apply. But for a nationally known celebrity, where is the \"situs” of the property right in the Right of Publicity? At the person's domicile? And if plaintiff is not the celebrity, but his or her exclusive licensee, does the “property” in the Right of Publicity exist in the state of incorporation of the exclusive licensee, so that the law of several different states applies to several different plaintiffs? Id. Although the Court notes some of the pitfalls inherent in the approach applied today, the Court is neither empowered nor inclined to modify California law, regardless of uncertainties created by the interplay between §§ 990 and 946. . Estate of Presley v. Russen, 513 F.Supp. 1339 (D.N.J.1981). . Groucho Marx Prods., Inc. v. Day & Night Co., 689 F.2d 317 (2d" }, { "docid": "16049394", "title": "", "text": "to a matter of public interest or to a public investigation could not be a violation of anyone’s right of privacy. See also Georgia Gazette Publishing Co. v. Ramsey, 248 Ga. 528, 284 S.E.2d 386 (1981). For other Georgia cases involving the right of privacy, see Tanner-Brice Co. v. Sims, 174 Ga. 13(4), 161 S.E. 819 (1931); Goodyear Tire & Rubber Co. v. Vandergriff, 52 Ga.App. 662, 184 S.E. 452 (1935). . The Second Circuit has now accepted the Sixth Circuit’s interpretation of Tennessee law. Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278 (2d Cir., 1981). . On appeal of this case, the Second Circuit reversed, finding the law of California applicable, where, as noted above, the right of publicity is not inheritable. Groucho Marx Productions, Inc. v. Day & Night Co., 689 F.2d 317 (2d Cir.1982). . Although the conclusion reached in answer to question 2 was based in part upon commercial considerations, and our answer to question 3 is based upon the absence of exploitation, the reasoning supporting the answer to question 3 also supports the answer to question 2. WELTNER, Justice, concurring specially. I concur specially because, although this matter is one of certified questions, I believe that the complaint states a claim upon which relief can be granted. I disagree most decidedly with the substantive portion of the majority opinion, for reason that it generates more unsettling questions than it resolves. In this opinion, we have taken the “right of privacy” as enumerated in Pavesich, supra, and added thereto a new thing, now called a “right of publicity.” That seems to me to be more an exercise in verbal juxtaposition than a careful examination of legal issues and practical results. At heart, the whole body of tort law is but an expression of what the community perceives to be the civil, as opposed to moral or ethical, responsibility of its members to each other. That concept changes with the cumulative experiences and assessments of succeeding generations, through constitutional, legislative, and judicial pronouncement. And well it should, for, in Thomas Jefferson’s words, “Laws and institutions" }, { "docid": "17167714", "title": "", "text": "whether or not use of the likeness of the Marx Brothers by defendant Day and Night Co., Inc., infringed that right of publicity. The court was required to decide whether the right of publicity survived the death of the Marx Brothers, so as to continue as a property right of their heirs and Groucho’s assignee. All three Marx brothers were domiciled in California at the time of their deaths. New York, as we have discerned California does also, applies as its choice of law rule to property issues the law of the domicile. The Second Circuit in Groucho Marx Productions therefore applied California law to decide if the right of publicity survived the deaths of the Marx Brothers, giving their heirs and assignee a valid claim for infringement of that right. In analyzing the survivability of the right of publicity in California, the Second Circuit stated: Without question, Lugosi established that California law does not recognize a de-scendible right of publicity available to the heirs of a celebrity who did not exploit his own right during his lifetime. What is less certain, however, is whether the right is descendible when the celebrity does exploit it during his lifetime. To take the California Court’s example, what rights would Lugosi’s heirs have had if he had established a company to market “Lugosi as Dracula” T-shirts? Id. at 329. In addressing this question, it said: “At most, California would recognize a descendible right of publicity that would have enabled the heirs to prevent others from using Lugosi’s name and likeness on T-shirts or any other product he had promoted during his life.” Id. at 321-22 (footnote omitted). The court continued: We conclude that Lugosi is subject to two interpretations. It may mean that California does not recognize any de-scendible right of publicity and that the heirs of a celebrity must rely on trademark law to protect the goodwill that the celebrity brought to a product during his lifetime. Alternatively, Lugosi might mean that, wholly apart from trademark law, California recognizes a descendible right of publicity that enables the heirs to prevent the use" }, { "docid": "19805427", "title": "", "text": "not an out-of-state plaintiff because he owns property in California and has other commercial interests there. California’s right of publicity “permit[s] celebrities ... to control the commercial exploitation of the celebrity’s likeness.” Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797, 805 (2001); see also Lugosi v. Universal Pictures, 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425, 445 (1979) (Bird, C.J., dissenting) (“The right of publicity protects the intangible proprietary interest in the commercial value in one’s identity.”). California’s interest in applying the right of publicity extraterritorially is based on its interest “safeguarding its citizens from the diminution in value of their names and likenesses.” Sinatra, 854 F.2d at 1202. Cf. Brand v. Menlove Dodge, 796 F.2d 1070, 1075 (9th Cir.1986) (“[S]tates have a strong interest in protecting their own citi zens.... ”)• Love cites no case where California has recognized that injury relevant to a choice-of-law analysis is suffered anywhere other than the domicile of the celebrity or the location where the image is exploited. B Even if Love’s commercial interests in California did create a true conflict, England’s interests would be much more greatly impaired by a failure to apply English law. “In making [its] comparative impairment analysis, the trial court must determine the relative commitment of the respective states to the laws involved and consider the history and current status of the states’ laws and the function and purpose of those laws.” Wash. Mutual Bank, FA v. Super. Ct., 24 Cal.4th 906, 103 Cal.Rptr.2d 320, 15 P.3d 1071, 1081 (2001) (internal quotation marks omitted). “[0]ne of the goals of that analysis is the maximum attainment of underlying purpose by all governmental entities.” Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95, 45 Cal.Rptr.3d 730, 137 P.3d 914, 918 (2006) (internal quotation marks omitted). Although England does not recognize a right of publicity, it does provide celebrities with certain other limited protections against commercial misappropriation, including copyright, trademark, and the tort of “passing off.” Alain J. Lapter, How the Other Half Lives (Revisited): Twenty years since Midler v. Ford" }, { "docid": "4811526", "title": "", "text": "Pre-1972 Recordings EMI argues that the DMCA does not apply to songs recorded prior to February 15, 1972. To support that proposition, EMI relies on section 301(c) of the Copyright Act: With respect to sound recordings first fixed before February 15, 1972, any rights or remedies under the common law or statute of any State shall not be annulled or limited by this title until February 15, 2067. 17 U.S.C. 301(c). EMI asserts that section 301(c) trumps the DMCA and excludes pre-1972 sound recordings from federal copyright protection. See Goldstein v. California, 412 U.S. 546, 552, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); see also Capitol Records, Inc. v. Naxos of Am. Inc., 372 F.3d 471, 477 (2d Cir.2004). But Gold-stein and Naxos do not stand for the proposition that pre-1972 recordings are beyond the reach of the DMCA. This issue is one of first impression. Reading section 301 in context and looking to the architecture of the Copyright Act as a whole, this Court concludes that there is no conflict between section 301 and the DMCA’s safe harbors for infringement of pre-1972 recordings. In 1972, Congress created federal copyright protection for sound recordings and other works expressed in a tangible medium. The Copyright Act sought to preempt common law rights, state copyrights, and equivalent rights for those works. See 17 U.S.C. 301(a) (“[A]ll legal or equitable rights ... in works of authorship that are fixed in a tangible medium ... are governed exclusively by this title. [N]o person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.”). However, Congress did not intend the grant of federal protection to preempt state and common law protection of works created before 1972. To implement that policy, Congress enacted section 301(c). See Goldstein v. California, 412 U.S. at 552, 93 S.Ct. 2303 (“[NJothing in Title 17, as amended is to be applied retroactively or (to) be construed as affecting in any way any rights with respect to sound recordings fixed before February 15, 1972.”) (quotation marks omitted, emphasis added). In" }, { "docid": "13616498", "title": "", "text": "There are many such cases where a claim is too abstract to be a protectible right or thought to be mere imitation which is not protectible. For example, in Booth v. Colgate-Palmolive Co., Inc., 362 F.Supp. 343 (S.D.N.Y.1973) (Bonsai, J.) the court found that a commercial with a voice-over imitation of plaintiff Booth in the role of the television character “Hazel” was not actionable as a right of publicity because the “commercials in issue here are anonymous and do not use plaintiff’s name or likeness in any way to identify her as the source of the voice of Hazel. . . . ” The present case is distinguishable from both Miller and Booth. Here we have determined that a property right does exist, such as the court was unable to find in Miller, and that we are not concerned with an “imitation” such as was found by the Booth court. Rather, we have here the situation specified by Booth as a different one where the challenge is to the use of a person’s “name or likeness.” Defendants also cite recent Supreme Court eases involving federal copyright law, Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), for the proposition that articles not protected by federal law from limitation are not otherwise protectible. We cannot agree that the federal copyright laws pre-empt a state-based right of publicity. [W]here Congress determines that neither federal protection nor freedom from restraint is required by the national interest, it is at liberty to stay its hands entirely. Since state regulation would not then conflict with federal action, total relinquishment of the States’ power to grant copyright protection cannot be inferred. Goldstein v. California, 412 U.S. 546, 559, 93 S.Ct. 2303, 2311, 37 L.Ed.2d 163 (1972). The logic of this conclusion forecloses any argument here that forms of state protection other than copyright laws are precluded by federal pre-emption." }, { "docid": "947998", "title": "", "text": "court in Tennessee. Our own circuit having first had jurisdiction over the issues and having actually adjudicated them for preliminary injunction purposes, the refusal to apply collateral estop-pel below in this case cannot be said to permit relitigation. Moreover, the issue here may be seen as one of pure law. Application of any type of collateral estoppel to such an issue is questionable. See McGrath v. Gold, 36 N.Y.2d 406, 369 N.Y. S.2d 62, 330 N.E.2d 35 (1975); Restatement (Second) of Judgments § 88(1) (Tent. Draft No. 3). Pro Arts’ next contention, that in view of its valid copyright in the In Memory poster the federal copyright statute preempts Factors’ state law publicity rights, was fully discussed and rejected by the district court. I agree with Judge Tenney’s conclusion that the right protected here is not equivalent to any within the general scope of federal copyright law and so is not preempted by the 1909 Act, as interpreted in Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), which controls this case. It would likewise not have been preempted under § 301 of the new 1976 Act, 17 U.S.C. § 301, if the events had occurred after 1978. The right of publicity protects an interest which copyright does not. That interest is the individual’s ability commercially to maintain and exploit his fame and persona. Copyright merely protects the holder from the taking of specific expressions or arrangements he or she had created. The right of publicity, on the other hand, protects against the unauthorized appropriation of an individual’s very persona which would result in unearned commercial gain to another. If this right is not the equivalent of a copyright interest during the person’s life (as Pro Arts concedes) it is equally not the equivalent after he has died and it has been devised. Other courts which have considered the preemption argument in this exact context have reached the same conclusion as that arrived at by the district court here. See Apigram Publishing Co. v. Factors Etc., Inc., Civ. No. C78-525 (N.D. Ohio July 30, 1980); Lugosi," }, { "docid": "16032993", "title": "", "text": "League Baseball Players Association: The Right of Publicity in Game Performances and Federal Copyright Preemption, 36 U.C.L.A. L.Rev. 861, 870 (1989). In any event, Baltimore Orioles is distinguishable from this case because the right of publicity claimed by the baseball players was essentially a right to prevent rebroadcast of games whose broadcast rights were already owned by the clubs. Viewed in this way, the case is the same as Fleet, Inc. v. CBS, supra. The case before us offers no such complication, as the appellee performers did not give permission to the appellants to market their recordings or photographs. We decline appellants’ invitation to find name or likeness copyrightable simply because they are placed on CD’s and tapes or in catalogs that have copyrightable subject matter recorded on them. The fact that section 301 does not apply does not end the inquiry, however. Although section 301 preemption is not appropriate, conflict preemption might be. The Supremacy Clause dictates that a state law that obstructs the accomplishment of the full purposes and objectives of Congress is preempted. See Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). The major purpose of the Copyright Act is, as the Constitution states, “to promote the progress of Science and useful arts.” U.S. Const., art. I, § 8, cl. 8. The legislative history of the Copyright Act describes several other objectives: 1) to promote national uniformity and avoid the difficulties of determining and enforcing rights under different state laws; 2) to have copyright protection last for a limited time period, so that scholars and the public can benefit from the dissemination of copyrighted materials; and 3) to improve our international dealings in copyrighted materials. See House Report at 132, reprinted in 1976 U.S.C.C.A.N. at 5745-46; see also Goldstein v. California, 412 U.S. 546, 554-56, 93 S.Ct. 2303, 2308-10, 37 L.Ed.2d 163 (1973). Although appellants argue vigorously that not preempting appellees’ misappropriation claims would undermine the copyright system, several considerations belie this claim. First, the right of publicity that the misappropriation tort protects promotes the major objective of the Copyright" }, { "docid": "947979", "title": "", "text": "As it happens, the author of Memphis Development is a distinguished member of the Tennessee bar, whose sense of what may be expected of the Tennessee Supreme Court surely surpasses our own. But since Judge Merritt’s opinion so emphatically disclaims any basis for predicting how Tennessee will resolve the issue on the merits, we prefer to determine the authoritativeness of Memphis Development with regard to the territorial scope of the Sixth Circuit, rather than the heritage of the opinion’s author. . In view of our disposition of the appeal, deferring, as a matter of stare decisis to the Sixth Circuit’s interpretation of Tennessee law, we need not consider Pro Arts’ other contentions, which include claims that the judgment in Memphis Development collaterally estops Factors from asserting a descendible right of publicity, that if New York law applies, New York would not recognize such a right, and that federal copyright law preempts application of state law purporting to protect such a right. Nor need we consider whether the law of a state recognizing a right of publicity may be enforced nationwide, or only within that particular state. Cf. Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). MANSFIELD, Circuit Judge (dissenting): I respectfully dissent. I agree with the majority that, despite the contrary assumption of all parties in Factors I, New York conflict of laws analysis would call for the application of Tennessee law to determine if Elvis Presley’s right of publicity survived his death. However, with the utmost of respect for our distinguished and able colleagues on the Sixth Circuit, I see no warrant, if we disagree on the merits, for blindly following its decision in Memphis Development Foundation v. Factors Etc., Inc., 616 F.2d 956 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980), any more than we would defer to the decision of any other circuit court with which we might, as has occurred on numerous occasions, disagree or conflict. The reasoning of Memphis Development is not in any way derived from the local law of Tennessee. Its result" }, { "docid": "16032994", "title": "", "text": "preempted. See Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). The major purpose of the Copyright Act is, as the Constitution states, “to promote the progress of Science and useful arts.” U.S. Const., art. I, § 8, cl. 8. The legislative history of the Copyright Act describes several other objectives: 1) to promote national uniformity and avoid the difficulties of determining and enforcing rights under different state laws; 2) to have copyright protection last for a limited time period, so that scholars and the public can benefit from the dissemination of copyrighted materials; and 3) to improve our international dealings in copyrighted materials. See House Report at 132, reprinted in 1976 U.S.C.C.A.N. at 5745-46; see also Goldstein v. California, 412 U.S. 546, 554-56, 93 S.Ct. 2303, 2308-10, 37 L.Ed.2d 163 (1973). Although appellants argue vigorously that not preempting appellees’ misappropriation claims would undermine the copyright system, several considerations belie this claim. First, the right of publicity that the misappropriation tort protects promotes the major objective of the Copyright Act — to support and encourage artistic and scientific endeavors. Second, the record here indicates that industry practice may be to transfer rights in a performer’s name or likeness when the copyright is transferred. If that is the case, right of publicity claims will rarely interfere with a copyright holder’s use of the creator’s name or likeness in connection with the copyright. Third, common law on the right of publicity appears ordinarily to permit an authorized publisher or distributor to use name or likeness to identify truthfully the author or creator of the goods. See Zim v. Western Publishing Co., 573 F.2d 1318, 1327 (5th Cir.l978)(holding that authorization to publish author’s work provided implicit authorization to use author’s name to identify work); Neyland v. Home Pattern Co., 65 F.2d 363, 364 (2d Cir.l933)(holding that an implied license to use the name to sell goods arises if the goods have been sold or disposed of); Kamakazi Music Corp. v. Robbins Music Corp., 534 F.Supp. 69, 77 (S.D.N.Y.1982)(holding that the right to use a composer’s name or" }, { "docid": "13008692", "title": "", "text": "Cf. Factors, Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278, 281 (2d Cir.1981) (\"noting that tort conflicts rules apply to issue of conversion of property, but property conflicts rules apply to whether plaintiff has title to property allegedly converted”). Appellants’ assertion that their rights derive from implied consent and trade custom invokes Contract principles as well. If Massachusetts still adhered to the single-factor mode of analysis of the First Restatement, categorizing this action would be critical. Indeed, the parties’ briefs are largely dedicated to asserting that one categorization or another is appropriate. However, Massachusetts’ choice of law rules no longer rest on such a rigid system. Massachusetts’ current approach is based on a set of overarching principles and considerations applicable to all choice of law questions. Cf. Restatement (Second) of Conflict of Laws § 6(2), infra part III. . Although Massachusetts allows certification of difficult questions of state law to the Supreme Judicial Court, it is inappropriate for a federal court to use such a procedure when the course state courts would take is reasonably clear. See Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 274-75 (5th Cir.1976), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 92 (1976); see also C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 4248 (1978). . Some choice of law decisions involving the right of publicity mention the domicile of the person whose name or likeness is being used commercially as part of a “contacts” analysis of the choice of law question. See, e.g., Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278, 281 (2d Cir.1981); Groucho Marx Productions v. Day and Night Co., 689 F.2d 317, 320 (2d Cir.1982); Bi-Rite Enterprises, Inc. v. Button Master, 555 F.Supp. 1188, 1196 (S.D.N.Y.1983). But in most cases this mention is merely cumulative; performers’ domiciles generally coincide with the places where they exploit their rights. See, e.g., Button Master, 555 F.Supp. at 1197." }, { "docid": "18392136", "title": "", "text": "by patent or trade-mark is the exercise of a right possessed by all — and in the free exercise of which the consuming public is deeply interested.’ ” Sears, 84 S.Ct. at 789 (quoting Kellogg v. National Biscuit Co., 305 U.S. Ill, 122, 59 S.Ct. 109, 115, 83 L.Ed. 73 (1938)). Although the language in Sears and Compco was broad, the Court recognized in Compco that the patent and copyright laws did not prevent a state from imposing liability on persons seeking to wrongfully trade on the goodwill of the original manufacturer or producer. “A state of course has power to impose liability upon those who, knowing that the public is relying upon an original manufacturer’s reputation for quality and integrity, deceived the public by palming off their copies as the original.” Compco, 84 S.Ct. at 782. In Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), the Court again considered preemption analysis, this time in the context of the copyright laws. At issue in Goldstein was the power of the state to make unlawful the piracy of musical recordings that were not the subject matter of copyright. The court in Goldstein restated the preemption question as follows: “Our primary function is to determine whether, under the circumstances of this particular case, [the State] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 93 S.Ct. at 2312 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)). Declining to find preemption of the state law prohibiting the piracy of recordings, the Court reasoned in Goldstein that' Sears and Compco did not apply. Unlike the law of patent, in which Congress expressly determined which mechanical configurations it wished to protect and which it did not wish to protect, the Court could not conclude that Congress drew a similar balance with respect to all “writings.” Because Congress drew no balance indicating that recordings were not entitled to protection, the states could offer protection to such “writings” without contradicting or obstructing the accomplishment and" }, { "docid": "22038440", "title": "", "text": "asserts that Durham has thereby infringed upon Tomy’s exclusive right to copy its own creations. Before asking a court to consider the question of infringement, a party must demonstrate the existence and the validity of its copyright, for in the absence of copyright (or patent, trademark, or state law) protection, even original creations are in the public domain and may be freely copied. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Compeo Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964); see also Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). In many cases, the existence of a valid copyright can be established by the introduction into evidence of a Copyright Office certificate of registration. Such a certificate, if timely obtained, “constitute[s] prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c) (Copyright Act of 1976); cf. Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 n.1 (2d Cir. 1977) (certificate given same effect under 1909 Copyright Act); see 3 M. Nimmer on Copyright § 12.11 (1980) (“Nimmer”). It is clear, however, that a certificate of registration creates no irrebuttable presumption of copyright validity. Where other evidence in the record casts doubt on the question, validity will not be assumed. In the instant case, the evidence that raises-and we think necessitates an adverse determination of-the issue of the validity of Tomy’s copyrights on its three Disney figures is the mute testimony of Mickey, Donald and Pluto themselves. One look at Tomy’s figures reveals that, in each, the element of originality that is necessary to support a valid copyright is totally lacking. For half a century or so Disney’s characters have peered at us from movie screens, comic books, television sets, posters, clothing, watches, dolls, and a variety of other media, and it would be safe to say that they have a recognition factor that any politician or celebrity would envy. See Sid & Marty Krofft Television" }, { "docid": "23406165", "title": "", "text": "public domain and subject to claims of infringement. The right of publicity provides limited notice to the public of the extent of the monopoly right to be asserted, if one is to be asserted at all. As the right of privacy is expanded beyond protections of name, likeness and actual performances, which provide relatively objective notice to the public of the extent of an individual’s rights, to more subjective attributes such as achievements and identifying characteristics, the public’s ability to be on notice of a common law monopoly right, if one is even asserted by a given famous individual, is severely diminished. Protecting phrases and other things merely associated with an individual provides virtually no notice to the public at all of what is claimed to be protected. By ensuring the invocation of the adjudicative process whenever the commercial use of a phrase or other associated thing is considered to have been wrongfully appropriated, the public is left to act at their peril. The result is a chilling effect on commercial innovation and opportunity. Also unlike the federal statutory monopolies, this common law monopoly right offers no protections against the monopoly existing for an indefinite time or even in perpetuity. See Memphis Development, supra (right not inheritable under Tennessee law); Lugosi v. Universal Pictures, 25 Cal.3d 813, 603 P.2d 425, 160 Cal.Rptr. 323 (1979) (right not inheritable under California law). Contra, King v. American Heritage Products, Inc., 250 Ga. 135, 296 S.E.2d 697 (1982) (right inheritable under Georgia law); Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979) (right inheritable); Groucho Marx Productions, Inc. v. Day & Night Co., Inc., 523 F.Supp. 485 (S.D.N.Y.1981) (right inheritable if commercially exploited during lifetime). B. Federal Policy: Free Expression'and Use of Intellectual Property The first amendment protects the freedom of speech, including commercial speech. U.S. Const, amend. I; Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 rehr’g denied, 423 U.S. 886, 96 S.Ct. 162, 46 L.Ed.2d 118 (1975). Strong federal policy permits" }, { "docid": "10722628", "title": "", "text": "and federal law governs whether plaintiffs may assert a claim based on parallel rights under the Lanham Act. McCarthy continues: The categorization approach also presents great difficulties of characterization. If the Right of Publicity is labeled \"property,” the law of the \"situs” of property would apply. But for a nationally known celebrity, where is the \"situs” of the property right in the Right of Publicity? At the person's domicile? And if plaintiff is not the celebrity, but his or her exclusive licensee, does the “property” in the Right of Publicity exist in the state of incorporation of the exclusive licensee, so that the law of several different states applies to several different plaintiffs? Id. Although the Court notes some of the pitfalls inherent in the approach applied today, the Court is neither empowered nor inclined to modify California law, regardless of uncertainties created by the interplay between §§ 990 and 946. . Estate of Presley v. Russen, 513 F.Supp. 1339 (D.N.J.1981). . Groucho Marx Prods., Inc. v. Day & Night Co., 689 F.2d 317 (2d Cir.1982). . Several other sources tangentially support application of the law of the decedent’s domicile to questions concerning the existence of a right of publicity. See White v. Samsung Electronics America, Inc., 989 F.2d 1512, 1518 (9th Cir.1993) (Kozinski, J., dissenting from denial of petition for rehearing and rejection of suggestion for rehearing en banc) (\"A right of publicity created by one state applies to conduct everywhere, so long as it involves a celebrity domiciled in that state.”); Allison v. Vintage Sports Plaques, 136 F.3d 1443, 1446 n. 6 (11th Cir.1998) (noting choice of law question typically complicated by fact that right of publicity is treated in some jurisdiction as property right and in others as tort); McCarthy, Rights of Privacy & Publicity, § 6.5[A][A] n. 2 (noting 1994 Indiana statute purports to provide right of publicity regardless of state of domicile of deceased person and stating general rule of conflicts is to apply law of state of domicile of decedent to determine whether there is post-mortem right of publicity), § 11.3[D][3][a] (discussing general conflicts" } ]

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

[ { "docid": "23657085", "title": "", "text": "in both habeas corpus proceedings and other contexts”). We begin our discussion by setting forth the limited circumstance under which a court may issue a COA. The right to appeal is governed by the COA requirements set forth in 28 U.S.C. § 2253(c): (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). Under this limited provision, if a district court denies a habeas petition on procedural grounds without reaching the petitioner’s underlying constitutional claims, a COA should issue only if the petitioner shows “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1601, 146 L.Ed.2d 542 (2000). “[B]oth showings [must] be made before the court of appeals may entertain the appeal.” Id. at 485, 120 S.Ct. at 1604. If the procedural bar is obvious and the district court correctly invoked it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at 484, 120 S.Ct. at 1604. The court may first resolve the issue whose answer is more apparent from the record and the arguments. Id. at 485, 120 S.Ct. at 1604. “The recognition that the court will not pass upon a constitutional question" }, { "docid": "22276145", "title": "", "text": "the motion does not meet the requirements we outline today, the district court must deny it. If a petitioner wishes to appeal the denial of a Rule 60(b) motion aimed at a judgment denying habeas relief, he must obtain a certificate of appealability in order to do so. The dissent’s criticism that no Rule 60(b) motion could ever meet the standards set out for certificates of appealability in § 2253(c)(1) & (c)(2), which provides that they “may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right,” is obviously unfounded. See generally Dissenting Op. Part IV. Our disposition of two of the cases in front of us proves how unfounded it is. We conclude in Part III of this opinion that two of the three petitioners are entitled to a certificate of appealability, and we issue each of them one. We do so applying guidance the Supreme Court provided us in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), which dealt with certificate of ap-pealability applications to review procedurally based denials in habeas cases. That which is done is not impossible. Furthermore, a central premise of the dissent’s impossibility argument is that the decision of whether to issue a certificate of appealability must be confined to consideration of the debatability of a constitutional issue. It must be, the dissent reasons, because the certificate of appealability standard is whether “the applicant has made a substantial showing of the denial of a constitutional right.” See § 2253(c)(2). Appealing as it might otherwise be, that reasoning is at war with the Supreme Court’s holding in the Slack case. Construing and applying the identical statutory language, the Court in Slack concluded that in deciding whether to issue a certificate of appealability to permit an appeal from the denial of a habeas petition on procedural grounds, courts must consider the debatability of the procedural ruling, and no certificate may be issued if the petitioner fails to make a substantial showing that the procedural ruling was wrong. 529 U.S. at 484, 120 S.Ct." }, { "docid": "23442042", "title": "", "text": "court’s decision to deny his “Motion for Leave to File a Second Amended Petition for Writ of Habeas Corpus.” As explained below, we treat Murray’s uncertified claim as a motion to expand the certificate of appealability (“COA”) that we previously granted. Under Federal Rule of Appellate Procedure 22(b)(2), a notice of appeal constitutes an application for a COA. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Thus, where “a motions panel grants a COA in part and denies a COA in part,” “[uncerti-fied issues raised and designated in [the manner prescribed by Ninth Circuit Rule 22-1] will be construed as a motion to expand the COA and will be addressed by [us] to such extent as [we] deem[ ] appropriate.” 9th Cir. R. 22-1(d)-(e). A COA may issue in federal habe-as review of state proceedings “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Wilson v. Belleque, 554 F.3d 816, 825-26 (9th Cir.2009). This is not an exacting standard. Id. at 826. We will “not decline the application for a COA merely because [we] believe[ ] the applicant will not [ultimately] demonstrate an entitlement to relief.” Miller-El, 537 U.S. at 337, 123 S.Ct. 1029. Rather, we will issue a COA “if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Wilson, 554 F.3d at 826. If, however, the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when ... jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not[, however,] conclude" }, { "docid": "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": "22217607", "title": "", "text": "psychiatric reports, constituted evidence with sufficient reliability to support the Board’s denial of parole. Therefore we cannot conclude that the state court’s decision upholding this denial was “contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). II. Rosas also contends that he is entitled to habeas relief because his guilty plea was not knowing and voluntary, thereby denying him due process and effective assistance of counsel at sentencing. The district court dismissed this claim as time-barred and later denied Rosas’s request for a certificate of appealability on the issue. Unlike Rosas’s claim for denial of parole, the challenge to his underlying conviction “arises out of process issued by a State court,” and therefore Rosas must obtain a certificate of appealability in order for us to entertain his appeal. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability should issue only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the district court dismisses the petition on procedural grounds, a certificate of appealability should issue only if the petitioner can show: (1) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”; and (2) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Rosas has failed to meet this standard with respect to the district court’s resolution of the statute of limitations issue. The statute of limitations on habeas corpus petitions filed by state prisoners in federal court is one year. 28 U.S.C. § 2244(d)(1). State prisoners like Rosas, whose convictions became final prior to the enactment of this one-year statute of limitations, had until April 24,1997 to file their petitions. Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001). Rosas did not file a petition challenging his sentence until 2000. Moreover, nothing in the record suggests" }, { "docid": "11165303", "title": "", "text": "court’s decision without a COA. Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029; Lockett, 711 F.3d at 1249. The district court dismissed each of these claims on procedural grounds and refused to grant a COA for any of them. Although Mr. Frost does not explicitly seek a COA, we construe his filing of a notice of appeal as a request for a COA. See Fed. R.App. P. 22(b)(2) (“If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.”); see also United States v. Gordon, 172 F.3d 753, 753-54 (10th Cir.1999) (citing Fed. R.App. P. 22(b)(2)). 1. Standard for Granting COA Under AEDPA, we may not issue a COA unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253; see also Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). When a district court dismisses a petition on procedural grounds “without reaching the prisoner’s underlying constitutional claim,” a COA cannot issue unless the petitioner shows both (1) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and (2) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; accord Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir.2007). Rather than addressing these two threshold re quirements in order, we may “resolve the issue whose answer is more apparent from the record and arguments.” Slack, 529 U.S. at 485, 120 S.Ct. 1595. 2. Legal Background a. Exhaustion and anticipatory procedural bar A federal court cannot grant a state prisoner’s habeas petition unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1). Relevant here, a state prisoner must give state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct." }, { "docid": "18061434", "title": "", "text": "§ 2254 habeas corpus petition, however, the Antiterrorism and Effective Death Penalty Act of 1996 (\"AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, \"governs the conditions of [Jones’s] appeal, and so he was required to seek a COA to obtain appellate review of the dismissal of his habeas petition.” Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We treat Jones's notice of appeal, filed on September 24, 2013, as an application for a COA. See Fed. R.App. P. 22(b); Slack, 529 U.S. at 483, 120 S.Ct. 1595. When the district court denies a habeas corpus petition on procedural grounds and fails to reach the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows \"that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Reviewing Jones's motion, we conclude that he has satisfied AEDPA's requirements for a COA by making “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and by showing that jurists of reason could debate whether the district court properly dismissed Jones’s Rule 60(b) motion as a disguised (and unauthorized) second or successive 28 U.S.C. § 2254 habeas corpus petition. We grant Jones a COA, though this of course is not the same as authorizing him to file a second or successive 28 U.S.C. § 2254 habeas corpus petition based on the standard in 28 U.S.C. § 2244(b). . An Arizona execution warrant expires 24 hours from the date it sets for the execution. Ariz. R.Crim. P. 31.17(c)(3). Jones’s warrant sets his execution for October 23, 2013, and therefore expires the next day. Because it would take far longer than that to reopen and adjudicate the claims Jones now wishes to pursue, the State would be forced to obtain a new warrant if Jones is allowed to proceed but then loses. Thus, the likely need to" }, { "docid": "2875794", "title": "", "text": "action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable" }, { "docid": "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": "23518656", "title": "", "text": "addressed Mr. Adams’ contention that pursuant to Houston v. Lack, his second state petition was “filed” when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams’ federal habeas petition timely. We granted a certificate of appealability, vacated the district court’s order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams’ federal petition untimely. We granted a certificate of ap-pealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal. DISCUSSION Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which requires the issuance of a certificate of appealability before an appeal can proceed in our court. See 28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As mentioned earlier, we granted a certificate of appealability on the issue of the timeliness of Mr. Adams’ federal petition. However, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appeal-ability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Therefore, the determination of whether a certificate of appealability should issue in this case must have “two components, one directed at" }, { "docid": "11429841", "title": "", "text": "of ap-pealability to include his Apprendi claim. II. Analysis A. Apprendi Claim On appeal of a district court’s decision to grant or to deny an application for writ of habeas corpus, we review all questions of law de novo. Small v. Endicott, 998 F.2d 411, 414 (7th Cir.1993). In order to appeal a district court’s ruling on a writ of habeas corpus, an applicant is required to obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B); Fed. R.App. P. 22(b)(1). Because the certificate in this case is limited to only the ineffective assistance claims, we will first address Rodriguez’s petition to expand the certificate to include his claim under Apprendi. “A certificate of appealability may issue [by a district or circuit judge] ... only if the applicant has made a substantial showing of the denial of a constitutional right ... [and the certificate] shall indicate which specific issue or issues satisfy that showing.” 28 U.S.C. § 2253(c); see also Williams v. Parke, 133 F.3d 971, 975 (7th Cir.1997). Rodriguez fails to make this showing, and therefore his request to expand the certificate of appealability is denied. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), a substantial showing of a denial of a constitutional right “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Here, the district court did not address the substantive issues underlying Rodriguez’s proposed habeas claim under Apprendi, but instead denied his post-judgment motions that sought to raise that claim. When a district court denies a habeas claim on procedural grounds, a circuit court should only expand the certificate to include that claim if a prisoner at least demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim" }, { "docid": "10631315", "title": "", "text": "counsel. . Section § 848(q)(4)(B) provides that, \"[i]n any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation ... shall be entitled to the appointment of one or more attorneys....” 21 U.S.C. § 848(q)(4)(B), repealed by Terrorist Death Penalty Enhancement Act of 2005, Pub.L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192, 232 (2006). . Judge Greenberg dissented, stating that he would have dismissed the appeal. . Judge Greenberg again dissented from the denial of panel rehearing. Michael v. Horn, 414 F.3d 456, 2005 WL 1606069, at *1-8 (3d Cir. July 7, 2005) (Greenberg, J., dissenting). . Judge Greenberg concurred to emphasize that he viewed whatever had happened in the District Court respecting Michael's vacillations as \"beyond the scope of our certificate of appealability.” Michael, 144 Fed.Appx. at 264 (Greenberg, J., concurring). Judge Nygaard dissented because he believed that the June 2 order was correct and, to the extent it was ambiguous, could be supplemented. Id. at 264-65 (Nygaard, J., dissenting). . A COA may issue only upon \"a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a \"district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where, as here, the District Court has rejected the claims on procedural grounds, the prisoner must establish “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. . It is also well settled that a defendant has a right to waive representation. See Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct." }, { "docid": "21868709", "title": "", "text": "that he had motioned to his pocket when he was in the store, the jury could also reasonably infer that the gun was physically available and accessible to him during the in-store robbery. In short, viewing all the testimony in the light most favorable to the prosecution, the court concludes that the Delaware Supreme Court did not unreasonably apply Jackson in finding sufficient evidence to sustain petitioner’s weapons conviction. Thus, this claim does not warrant habeas relief under § 2254(d)(1). Y. CERTIFICATE OF APPEALABILITY Finally, the court must decide whether to issue a certificate of appealability. See Third Circuit Local Appellate Rule 22.2. The court may issue a certificate of appeal-ability only when a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the denial of a constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. For the reasons stated above, the court concludes that petitioner is not entitled to federal habeas relief for any of his claims. Reasonable jurists would not find these conclusions unreasonable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued. VI. CONCLUSION For the foregoing reasons, petitioner’s application for habeas relief filed pursuant to 28 U.S.C. § 2254 will be denied. An appropriate order will be entered. ORDER For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that: 1. Petitioner Claude A. Jones’ application for a writ of habeas corpus pursuant to 28" }, { "docid": "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": "22976813", "title": "", "text": "and entered a final judgment, denying Dowthitt habeas relief on all claims, dismissing his case with prejudice, and denying Dowthitt’s request for a COA. After .the district court denied his Rule 59(e) motion, Dowthitt timely appealed to this court, requesting a COA and reversal of the district court’s judgment denying habeas relief. II. DISCUSSION Because Dowthitt’s petition for federal habeas relief was filed after April 24, 1997, this appeal is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (“Petitioners whose convictions became final before the effective date of the AEDPA were given a grace period of one year to file their federal habeas petitions, rendering them timely if filed by April 24, 1997.”). Under AED-PA, a petitioner must first obtain a COA in order for an appellate court to review a district court’s denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A). 28 U.S.C. § 2253(c)(2) mandates that a COA will not issue unless the petitioner makes “a substantial showing of the denial of a constitutional right.” This standard “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (internal quotations and citations omitted); see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.2000). The formulation of the COA test is dependent upon whether the district court dismisses the petitioner’s claim on constitutional or procedural grounds. If the district court rejects the constitutional claims on the merits, the petitioner “must demonstrate that reasonable jurists' would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 120 S.Ct. at 1604. On the other hand, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason" }, { "docid": "15137365", "title": "", "text": "unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless. D. Certificate of Appealability An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. This issue was central to petitioner’s trial and this Court’s resolution of the issue is central to this habeas proceeding. This claim not only is fact-intensive but also implicates numerous fundamental rights. That being so, the Court is more than satisfied that reasonable jurists could find its" }, { "docid": "1287410", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY TIMOTHY M. TYMKOVICH, Circuit Judge. Jonathan Lee Roderick, a state prisoner appearing pro se, seeks a certificate of appealability (COA), see 28 U.S.C. § 2253(c), allowing him to appeal the order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Because we determine Roderick has not established that “jurists of reason could conclude that the District Court’s dismissal on procedural grounds was debatable or incorrect,” Slack v. McDaniel, 529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we DENY a COA and DISMISS the appeal. I. Background Roderick was convicted in Wyoming state court of felony murder, aggravated burglary, and unauthorized use of a vehicle. The Wyoming Supreme Court affirmed Roderick’s conviction in 1993, except as to the judgment and sentence, which it modified by vacating a fifteen to twenty-five year term for aggravated burglary. See Roderick v. State, 858 P.2d 538, 541 (Wyo.1993). Roderick then filed a state court petition for post-conviction relief in 2007. That petition was denied by the Wyoming state courts. Finally, in 2008 Roderick filed a Petition for Writ of Review, which the Wyoming Supreme Court also denied. Roderick filed the instant § 2254 petition in federal district court in July 2008. The district court concluded the petition was time-barred and dismissed the case. See 28 U.S.C. § 2244(d). This appeal followed. II. Discussion Where a district court dismisses a § 2254 petition on procedural grounds, a petitioner seeking a COA must establish that reasonable jurists would find it debat able both whether the district court was correct in its procedural ruling, and whether the petition states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595; Fleming v. Evans, 481 F.3d 1249, 1254-56 (10th Cir.2007). If a procedural bar is present and the district court correctly invokes it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed" }, { "docid": "11812487", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY PAUL KELLY, JR., Circuit Judge. Petitioner Daniel Dill, a state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habe-as petition. We deny his request for a COA and dismiss the appeal. On October 29, 2003, Mr. Dill was convicted by a jury in Oklahoma state court on five felony counts. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction on January 4, 2005. Mr. Dill did not seek a writ of certiorari with the United States Supreme Court. On March 23, 2006, he applied for post-conviction relief in state district court. See Moore v. Gibson, 27 P.3d 483, 484 n. 1 (Okla.Crim.App.2001) (explaining that “an application for post-conviction relief in a non-capital case is always deemed to be timely filed” because there are no applicable time limitations). The motion was denied and that decision was affirmed by the OCCA on February 21, 2007. On April 4, 2007, Mr. Dill submitted his federal habeas petition to prison officials for mailing, and it was filed on April 16, 2007. The district court determined that the petition was time-barred under the one-year limitations period in 28 U.S.C. § 2244(d), and that equitable tolling did not apply. As the district court dismissed the habeas petition on procedural grounds, we may issue a COA only if Mr. Dill makes a substantial showing that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see 28 U.S.C. § 2253(c)(2). ■ [1] The one-year limitations period for filing a federal habeas petition runs from the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction is “final” (and the one-year limitations period begins to" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" } ]

[ { "docid": "2204887", "title": "", "text": "195 (C.A. 2, 1928); Carriso, Inc. v. United States, 106 F. 2d 707 (C.A. 9, 1939)). Such a claim is not barred as sounding in tort; nor need there be any specific consent-to-suit apart from the Tucker Act (Aycock-Lindsey Corp. v. United States, 171 F. 2d 518, 520-21 (C.A. 5, 1948)). The precise issue was thoroughly canvassed in Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, cert. denied, 348 U.S. 834 (1954), and the court ruled that such a demand does fall within 28 TJ.S.C. § 1491. Clapp has been followed since (Eversharp, Inc. v. United States, 129 Ct. Cl. 772, 775-76, 125 F. Supp. 244, 247 (1954); Pan American World Airways, Inc. v. United States, 129 Ct. Cl. 53, 55-56, 122 F. Supp. 682, 683 (1954); Gmo. Niehaus & Co., C. por A. v. United States, 139 Ct. Cl. 605, 612, 153 F. Supp. 428, 432 (1957); Seatrade Corp. v. United States, 152 Ct. Cl. 356, 359, 285 F. 2d 448, 449 (1961); Suwannee S.S. Co. v. United States, 150 Ct. Cl. 331, 279 F. 2d 874 (1960)), and we now adhere to it for plaintiff’s claim. The foreign affairs aspects of this case do not take it outside Clapp; those phases may bear upon the decision of the merits but they do not, of themselves, deprive us of the power to approach the merits in a controversy which is otherwise within our jurisdiction. Cf., e.g., Societe Anonyne des Ateliers Brillie Freres v. United States, 160 Ct. Cl. 192 (1963); Seery v. United States, 130 Ct. Cl. 481, 127 F. Supp. 601 (1955); Derecktor v. United States, 129 Ct. Cl. 103, 128 F. Supp. 136 (1954), cert. granted, 348 U.S. 926, cert. dismissed, 350 U.S. 802 (1955). The second of the Government’s initial defenses concentrates on the fact that plaintiff applied to import the sugar and then paid the disputed fees (though under protest). The theory is that plaintiff, having had the advantage of the privilege of importing, must take the hair with the hide. This case differs, however, from several on which defendant relies" } ]

[ { "docid": "6036880", "title": "", "text": "a claim within our jurisdiction. The Court ruled that \"the transaction was purely voluntary on [the plaintiffs] part, and that while there was a mistake it was mutual and one of law — a mistake on his part not induced by any attempt to deceive or misrepresentation by the government officials.” Id. at 515. (In cases such as Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 351 F.2d 636 (1965), cert. denied, 383 U.S. 957 (1966), we have followed Edmondston and barred recovery of overpayments to the government.) In a line of cases originally arising out of sales of surplus ships by the government after World War II, however, this court has found the Edmondston doctrine inapplicable. See Finn v. United States, 192 Ct. Cl. 814, 428 F.2d 828 (1970); Chris Berg, Inc. v. United States, 192 Ct. Cl. 176, 426 F.2d 314 (1970); Seatrade Corp. v. United States, 152 Ct. Cl. 356, 285 F.2d 448 (1961); Suwanee Steamship Co. v. United States, 150 Ct. Cl. 331, 279 F.2d 874 (1960); Sprague Steamship Co. v. United States, 145 Ct. Cl. 642, 172 F. Supp. 674 (1959); Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 158 F. Supp. 353 (1958); Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, cert. denied, 348 U.S. 834 (1954); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 US. 834 (1954); A.H. Bull Steamship Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952). Cf. Board of Directors & Officers, Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777 (10th Cir.), cert. denied, 414 U.S. 924 (1973); Standard Airlines, Inc. v. Civil Aeronautics Board, 177 F.2d 18 (D.C. Cir. 1949); Peoples Bank v. Eccles, 161 F.2d 636 (D.C. Cir. 1947), rev’d on other grounds, 333 U.S. 426 (1948) (administrative agencies cannot enter into contracts contrary to statute). The line we have drawn is that a voluntary payment may be recovered if the statute barring the payment was enacted for the benefit of" }, { "docid": "22833110", "title": "", "text": "Snyder-Lynch Motors Inc. v. United States, 154 Ct. Cl. 476, 479-80, 292 F. 2d 907, 909—10 (1961); see also General Casualty Co. v. United States, 130 Ct. Cl. 520, 528, 127 F. Supp. 805, 809 (1955), cert. denied, 349 U.S. 938; Leal v. United States, 149 Ct. Cl. 451, 460, 276 F. 2d 378, 383 (1960); Potashnick v. United States, 123 Ct. Cl. 197, 218, 105 F. Supp. 837, 839 (1952). Even for a new product lite this chlorine disinfectant or a new ingredient like chlormelamine, the Government would not necessarily be required to volunteer all of its information. The scope of the required disclosure would depend upon such factors as the state of the bidders’ knowledge, the significance of the particular information to the performance of the contract, the ease of discovering the information from other sources, the Government’s understanding of the importance of its information, etc. Plaintiff suspected as early as May 1952 that a possible cause of its difficulties was lack of uniformity between the different batches of chlormela-mine being delivered by Wallace & Tiernan. It was not until September 1952 that it definitely discovered that this was actually so and that the supplies of chlormelamine were not uniform from batch to batch. And it was not until December 1952 that plaintiff discovered that Wallace & Tiernan Was blending several batches together and shipping blended chlormelamine. Conversely, the end product particle size requirement was a maximum. See Brand Investment Co. v. United States, 102 Ct. Cl. 40, 58 F. Supp. 749 (1944), cert. denied, 324 U.S. 850 (1945); Severin v. United States, 102 Ct. Cl. 74 (1943); George A. Fuller Co. v. United States, 108 Ct. Cl. 70, 94, 96, 69 F. Supp. 409, 411-12 (1947); Volentine and Littleton v. United States, 144 Ct. Cl. 723, 169 F. Supp. 263 (1959); F. H. McGraw and Co. v. United States, 131 Ct. Cl. 501, 506-07, 130 F. Supp. 394, 397 (1955); Oliver-Finnie Co. v. United States, 150 Ct. Cl. 189, 279 F. 2d 498 (1960); Donald M. Drake Co. v. United States, 153 Ct. Cl. 433, 440-41 (1961);" }, { "docid": "6036881", "title": "", "text": "Co. v. United States, 145 Ct. Cl. 642, 172 F. Supp. 674 (1959); Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 158 F. Supp. 353 (1958); Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, cert. denied, 348 U.S. 834 (1954); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 US. 834 (1954); A.H. Bull Steamship Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952). Cf. Board of Directors & Officers, Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777 (10th Cir.), cert. denied, 414 U.S. 924 (1973); Standard Airlines, Inc. v. Civil Aeronautics Board, 177 F.2d 18 (D.C. Cir. 1949); Peoples Bank v. Eccles, 161 F.2d 636 (D.C. Cir. 1947), rev’d on other grounds, 333 U.S. 426 (1948) (administrative agencies cannot enter into contracts contrary to statute). The line we have drawn is that a voluntary payment may be recovered if the statute barring the payment was enacted for the benefit of the person seeking recovery but may not be recovered if enacted for the benefit of another. Rough Diamond Co., supra, 173 Ct. Cl. at 21-26, 351 F.2d at 639-42; Chris Berg, Inc., supra. Where the payments were exacted in violation of a statute intended to benefit the person seeking recovery, it is immaterial that that person failed to protest when making the payment. See Finn, supra, 192 Ct. Cl. at 820, 428 F.2d at 831. In the present case we have held that section 185(Z) permits the Secretary to require reimbursement of costs the government has incurred only if he acts pursuant to regulation and only for expenses incurred after the effective date of the statute. These limitations are designed for the benefit of the applicants for and holders of rights of way and permits and not for the benefit of the government. These two requirements — promulgation of regulations and the prospective operation of the authorization — are intended to give applicants and permittees the opportunity to be heard before the amount of reimbursement" }, { "docid": "4205140", "title": "", "text": "Ramo Wooldridge, Inc. v. United States, 175 Ct. Cl. 527, 536, 361 F. 2d 222, 228 (1966). Clearly we may not close our eyes to the fact that Federal law (49 Stat. 2004 (1936), as amended, 46 U.S.C. § 606(5) (1964)) requires the inclusion of the disputed language. A. H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 528, 108 F. Supp. 95, 99 (1952); G. L. Christian & Associates v. United States, 160 Ct. Cl. 1, 12, 312 F. 2d 418, 424 (1963), cert. denied, 375 U.S. 954. A necessary corollary is that, if we go beyond the contract to ascertain its meaning, we should look to the history of the legislation to determine the meaning of the language which must be included in the instrument. Cf. Russell Motor Car Co. v. United States, 261 U.S. 514 (1923). Article 11-28 is deficient in that it does not expressly state the nature of the relationship 'between the subsidized vessels and the incident services. Although nonsubsidized voyages are not mentioned, both parties argue that some should be included in the formula. Moreover, 'both parties sought to include certain nonsubsidized voyages in the formula during the operation of the agreement. Further, these services are in addition to the subsidized vessels; and the Maritime Administrator has defined “service” in Maritime Administration, U.S. Department of Commerce, Essential United States Foreign Trade Routes 76 (July 1960), as follows: The means of providing transportation over a trade route, including the itinerary, sailing frequency, number and type of vessels to be employed. A service may be contained entirely within the limits of a designated trade route, * * * [or] a service may extend into other trade routes * * *. The administrative cases hold that “service” contemplates “the entire scope of an operation.” Pacific Transport Lines, Inc.-Subsidy, Route 29, supra. See American Export Lines, Inc., 1 M.S.B. 236, 249 (Docket No. S-135, 1963); Lykes Bros. S.S. Co., 4 F.M.B. 153, 158 (Docket No. S-23, 1953); Grace Line, Inc., 6 F.M.B. 82, 86 (Docket No. S-113, 1960). In Grace Line tie Board said that “the" }, { "docid": "1588568", "title": "", "text": "United States cotton, said volume to be determined by the Secretary of Agriculture.” In attaining that goal, however, CCC was given some leeway, since it was also authorized to “accept bids in excess of the maximum prices specified herein [i.e., competitive world market prices],” although not permitted to “reject bids at such maximum prices unless a higher bid is received for the same cotton.” 70 Stat. 199, 7 U.S.C. § 1853. Passing over the Government’s substantive defenses that Section 203 did not apply at all to barters and did not, in any case, preclude an averaging of the world market price over a three-year period, we concentrate on the plaintiffs’ assumption that, once the court finds a violation of the statute, there is no escape from a judgment of recovery for them. This threshold postulate calls for inquiry. We can presuppose (without deciding) that the Department of Agriculture deviated from Section 203 when it pegged its cotton price above the current world level, but the probing question is whether that infringement should lead to an award of the additional monies paid by these purchasers for the CCC’s cotton. In a series of decisions growing out of the sale of government-owned vessels after World War II, this court held that buyers who had been charged more than the prices set by Congress could recover the excess, even though-they had entered into contracts to pay those higher, sums. A. H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 411-12, 414, 119 F. Supp. 731, 732-34 (1953), cert. denied, 348 U.S. 834 (1954); Clapp v. United States, 127 Ct. Cl. 505, 508-09, 513-15, 117 F. Supp. 576, 577-78, 581-82, cert. denied, 348 U.S. 834 (1954); Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 394-95, 158 F. Supp. 353, 354-55 (1958) ; Sprague S.S. Co. v. United States, 145 Ct. Cl. 642, 645-47, 172 F. Supp. 674, 675-76 (1959); Suwanee S. S. Co. v. United States, 150 Ct. Cl. 331, 333, 279 F. 2d" }, { "docid": "4371704", "title": "", "text": "of said animals and accept the appraisal value for each.” Mr. Goldman also said in his affidavit that \"I made clear to them [the appraisers] that I did not agree to the values assigned to the birds in those forms, and that I would continue after signing those forms to claim increased indemnification to reflect the true value of the birds. They [the appraisers] understood that.” Plaintiff cites: American Export Isbrandtsen Lines, Inc. v. United States, 204 Ct. Cl. 424, 468, 499 F.2d 552, 578 (1974); South Puerto Rico Sugar Co. Trading Corp. v. United States, 167 Ct. Cl. 236, 334 F.2d 622 (1964), cert. denied, 379 U.S. 964 (1965); American President Lines, Ltd. v. United States, 154 Ct. Cl. 695, 705, 291 F.2d 931, 936 (1961); Suwannee S.S. Co. v. United States, 150 Ct. Cl. 331, 279 F.2d 874 (1960); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 U.S. 834 (1954); A.H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952). Nor will the issue be important if the defendant prevails on the merits of the claim." }, { "docid": "22625347", "title": "", "text": "the place of delivery) any of the vessels purchased by it prior to documentation under the American flag.” This statutory provision (for which see 46 U.S.C. § 808 (1946)) made it unlawful, without the approval of the Maritime Commission, to sell or transfer or place under foreign registry or flag, any vessel owned by a citizen of the united States and documented under the laws of the united States. The statutory floor price of a Liberty ship with twice the deadweight capacity and equal speed, was then $336,000, subject to 25 percent down, the balance on terms. This was 1 week after plaintiff made its contract with Dansk-Franske and 1 week before its application for section 9 approval was filed. Prior to May 11, Dansk-Franske reluctantly agreed to an extension of 2 weeks, to May 25, 1949. The Chief, Bureau of Government Aids did, however, transmit copies of the telegram to each of the Commissioners, and notified plaintiff on May 11, 1949, that he had done so. The report of the General Manager on Seatrade Corporation, requested by the Commission on June 14, was incorporated in the memorandum. Reorganization Plan No. 21 of 1950, 15 F.R. 3178, 64 Stat. 1273, 46 U.S.C. 11111, note (1964). Clapp v. United States, 127 Ct. Cl. 595, 117 F. Supp. 576, cert. denied, 348 U.S. 834 (1954) ; Suwannee Steamship Co. v. United States, 150 Ct. Cl. 331, 279 F. 2d 874 (1960); Seatrade Corporation v. United States, 152 Ct. Cl. 356, 285 F. 2d 448 (1961). Tie filing date was February 23, 1955. Eastport Steamship Corporation v. United States, 157 Ct. Cl. 802 (1962)." }, { "docid": "22625339", "title": "", "text": "the 1946 edition of the U.S. Code. On May 18th the Commission directed its staff to submit a factual memorandum as to each company -which had purchased ex-German vessels and desired to sell or transfer foreign. Suit was begun here In 1955. Wben the petition in Seatrade Corp. v. United States, Ct. Cl. No. 245-55, was filed a few months later, by the same attorneys, the present case was put over in the belief that the decision In Seatrade would control the disposition of the instant case. Seatrade was decided January 18, 1961. See 152 Ct. Cl. 366. On September 8, 1961, plaintiff filed its motion for summary judgment. Pretrial proceedings were initiated in August 1962. Difficulties, due to lack of understanding, ensued in obtaining compliance with pretrial orders pertaining to examination and audit of voyage accounting. Many months were consumed in the effort to avoid the necessity for an audit of voyage accounting in the course of trial. The trial itself, in 1964, required months to complete (although days only were required to record the testimony). We put to one side the possible applicability of the Declaratory Judgment Act, 28 U.S.C. § 2201. Other such cases are A. H. Bull S.S. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952) ; Pan American World Airways, Inc. v. United States, 129 Ct. Cl. 53, 122 F. Supp. 682 (1954) ; Gmo. Niehaus & Co. v. United States, 139 Ct. Cl. 605, 612, 153 F. Supp. 428, 432 (1957) ; Zavodny v. United States, 139 Ct. Cl. 533, 152 F. Supp. 432 (1957) ; and Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 351 P. 2d 636 (1965), cert. denied, 383 U.S. 957 (1966). There are many others. Contrast Catalina Properties, Inc. v. United States, 143 Ct. Cl. 657, 166 P. Supp. 763 (1958). And which do not fall under another head of jurisdiction, such as a contract with the united States. On this phase of the case, Clapp, Suwannee, Seatrade, and the earlier Mast-port decision are beside the point. The issue there was the recovery" }, { "docid": "4371696", "title": "", "text": "extensions based on the time required to depopulate, clean and disinfect Egg City. Armed with this information, Mr. Goldman wrote to Agriculture Secretary Butz, accusing the Department of inequitable treatment toward Egg City. A meeting with Assistant Secretary of Agriculture Feltner was arranged to review Goldman’s claims for more money and two months later, on September 29, 1975, Feltner denied plaintiffs requests. On the basis of these averments in Mr. Goldman’s affidavit, plaintiff urges that, for neither the initial nor the supplemental indemnity, was there an accord and satisfaction because the Government (a) assured Egg City that signing the forms would not bar it from pursuing its claims, (b) actually considered plaintiffs claims on their merits well after the forms were signed, and (c) was aware that plaintiff did not intend to relinquish its claims by signing the appraisal forms. We think that, here too, triable issues of fact — relevant issues of fact — have definitely been raised by Goldman’s affidavit. If plaintiff is proven correct in its factual predicates, there will have been no accord and satisfaction. This court has said that even a general release will not prevail \"where the conduct of the parties in continuing to consider a claim after the execution of the release makes plain that they never construed the release as constituting an abandonment of the claim” (J.G. Watts Constr. Co. v. United States, 161 Ct. Cl. 801, 807 (1963)), and that claims included in a release are gone \"unless by its conduct the Government indicates a willingness to entertain them regardless of the release.” Adler Constr. Co. v. United States, 191 Ct. Cl. 607, 613, 423 F.2d 1362, 1365 (1970), cert. denied, 400 U.S. 993 (1971). In Inland Trucking Corp. v. United States, 150 Ct. Cl. 642, 647, 281 F.2d 457, 460 (1960), the court ruled that signature of a form referring to \"complete and final settlement of the contractor’s claim” did not bar recovery where \"plaintiff in fact did protest the deductions [orally]” and \"did not intend to waive its protest or abandon its claim when it accepted final payment and" }, { "docid": "4371703", "title": "", "text": "the amount of the departmental award, it does not urge that it was entitled to any procedures other than those followed by Agriculture. Nor does the claimant contend that it is entitled to just compensation in the constitutional sense. It is certainly doubtful that such a claim could stand. See Miller v. Schoene, 276 U.S. 272 (1928) (upholding the destruction, without just compensation, of cedar trees passing on a communicable plant disease). We hold in Part B, infra, that defendant has not shown conclusively, on this summary judgment motion, that the indemnities were proper. Plaintiff has also supplied some documentary materials in support of its position. The statement signed by Mr. Goldman said: \"I certify that I own or am authorized to represent the owner of the animals or materials identified in this claim. I make claim for all amounts due me in accordance with all applicable laws and regulations governing the payment of indemnities for the animals or materials identified and to be destroyed because of the disease specified. I further agree to slaughter of said animals and accept the appraisal value for each.” Mr. Goldman also said in his affidavit that \"I made clear to them [the appraisers] that I did not agree to the values assigned to the birds in those forms, and that I would continue after signing those forms to claim increased indemnification to reflect the true value of the birds. They [the appraisers] understood that.” Plaintiff cites: American Export Isbrandtsen Lines, Inc. v. United States, 204 Ct. Cl. 424, 468, 499 F.2d 552, 578 (1974); South Puerto Rico Sugar Co. Trading Corp. v. United States, 167 Ct. Cl. 236, 334 F.2d 622 (1964), cert. denied, 379 U.S. 964 (1965); American President Lines, Ltd. v. United States, 154 Ct. Cl. 695, 705, 291 F.2d 931, 936 (1961); Suwannee S.S. Co. v. United States, 150 Ct. Cl. 331, 279 F.2d 874 (1960); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 U.S. 834 (1954); A.H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 108" }, { "docid": "1588569", "title": "", "text": "award of the additional monies paid by these purchasers for the CCC’s cotton. In a series of decisions growing out of the sale of government-owned vessels after World War II, this court held that buyers who had been charged more than the prices set by Congress could recover the excess, even though-they had entered into contracts to pay those higher, sums. A. H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 411-12, 414, 119 F. Supp. 731, 732-34 (1953), cert. denied, 348 U.S. 834 (1954); Clapp v. United States, 127 Ct. Cl. 505, 508-09, 513-15, 117 F. Supp. 576, 577-78, 581-82, cert. denied, 348 U.S. 834 (1954); Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 394-95, 158 F. Supp. 353, 354-55 (1958) ; Sprague S.S. Co. v. United States, 145 Ct. Cl. 642, 645-47, 172 F. Supp. 674, 675-76 (1959); Suwanee S. S. Co. v. United States, 150 Ct. Cl. 331, 333, 279 F. 2d 874, 877 (1960). The holding was that the parties could not, by agreement, change the terms prescribed by the statute for, the sale of the ships. This was said to be so even where the purchaser had freely agreed to pay the greater amount, and even though the maritime agencies could have withheld the ships from sale. Judgments were entered for the excess. The Supreme Court had earlier been faced with a similar problem when a vendee of federal land paid considerably more than the statutory price for. some acreage. The Court ruled that the over-payment was voluntary and the payer had no claim, cognizable in this court, for the extra. United States v. Edmondston, 181 U.S. 500 (1901). In the ship-sale cases, we distinguished Edmondston by stressing the difference in the underlying legislation. The maritime statutes, we thought, embodied the Congressional wish that “the Government’s surplus ships should be sold at prices, uniform for all purchasers, and ascertainable by mathematical application of the statutory formula, properly interpreted”; this Congressional purpose “was strong enough to" }, { "docid": "8945152", "title": "", "text": "or disposal incurred. This provision, under the appropriate conditions, gives the Secretary formidable authority to act swiftly and prevent further danger to public health and property even in the face of owner resistance. . Though plaintiff challenges the amount of the departmental award, it does not urge that it was entitled to any procedures other than those followed by Agriculture. Nor does the claimant contend that it is entitled to just compensation in the constitutional sense. It is certainly doubtful that such a claim could stand. See Miller v. Schoene, 276 U.S. 272,48 S.Ct. 246, 72 L.Ed. 568 (1928) (upholding the destruction, without just compensation, of cedar trees passing on a communicable plant disease). . We hold in Part B, infra, that defendant has not shown conclusively, on this summary judgment motion, that the indemnities were proper. . Plaintiff has also supplied some documentary materials in support of its position. . The statement signed by Mr. Goldman said: “I certify that I own or am authorized to represent the owner of the animals or materials identified in this claim. I make claim for all amounts due me in accordance with all applicable laws and regulations governing the payment of indemnities for the animals or materials identified and to be destroyed because of the disease specified. I further agree to slaughter of said animals and accept the appraisal value for each.” . Mr. Goldman also said in his affidavit that “I made clear to them [the appraisers] that I did not agree to the values assigned to the birds in those forms, and that I would continue after signing those forms to claim increased indemnification to reflect the true value of the birds. They [the appraisers] understood that.” . Plaintiff cites: American Export Isbrandtsen Lines, Inc. v. United States, 499 F.2d 552, 578, 204 Ct.Cl. 424, 468 (1974); South Puerto Rico Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 167 Ct.Cl. 236 (1964), cert. denied, 379 U.S. 964, 85 S.Ct. 654, 13 L.Ed.2d 558 (1965); American President Lines, Ltd. v. United States, 291 F.2d 931, 936, 154 Ct.Cl. 695," }, { "docid": "8945153", "title": "", "text": "identified in this claim. I make claim for all amounts due me in accordance with all applicable laws and regulations governing the payment of indemnities for the animals or materials identified and to be destroyed because of the disease specified. I further agree to slaughter of said animals and accept the appraisal value for each.” . Mr. Goldman also said in his affidavit that “I made clear to them [the appraisers] that I did not agree to the values assigned to the birds in those forms, and that I would continue after signing those forms to claim increased indemnification to reflect the true value of the birds. They [the appraisers] understood that.” . Plaintiff cites: American Export Isbrandtsen Lines, Inc. v. United States, 499 F.2d 552, 578, 204 Ct.Cl. 424, 468 (1974); South Puerto Rico Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 167 Ct.Cl. 236 (1964), cert. denied, 379 U.S. 964, 85 S.Ct. 654, 13 L.Ed.2d 558 (1965); American President Lines, Ltd. v. United States, 291 F.2d 931, 936, 154 Ct.Cl. 695, 705 (1961); Suwannee S. S. Co. v. United States, 279 F.2d 874, 150 Ct.Cl. 331 (1960); Southeastern Oil Florida, Inc. v. United States, 119 F.Supp. 731, 127 Ct.Cl. 409 (1953), cert. denied, 348 U.S. 834, 75 S.Ct. 56, 99 L.Ed. 658 (1954); A. H. Bull S. S. Co. v. United States, 108 F.Supp. 95, 123 Ct.Cl. 520 (1952). . Nor will the issue be important if the defendant prevails on the merits of the claim." }, { "docid": "4371697", "title": "", "text": "no accord and satisfaction. This court has said that even a general release will not prevail \"where the conduct of the parties in continuing to consider a claim after the execution of the release makes plain that they never construed the release as constituting an abandonment of the claim” (J.G. Watts Constr. Co. v. United States, 161 Ct. Cl. 801, 807 (1963)), and that claims included in a release are gone \"unless by its conduct the Government indicates a willingness to entertain them regardless of the release.” Adler Constr. Co. v. United States, 191 Ct. Cl. 607, 613, 423 F.2d 1362, 1365 (1970), cert. denied, 400 U.S. 993 (1971). In Inland Trucking Corp. v. United States, 150 Ct. Cl. 642, 647, 281 F.2d 457, 460 (1960), the court ruled that signature of a form referring to \"complete and final settlement of the contractor’s claim” did not bar recovery where \"plaintiff in fact did protest the deductions [orally]” and \"did not intend to waive its protest or abandon its claim when it accepted final payment and the defendant’s representatives so understood.” See, also, Northern Helex Co. v. United States, 197 Ct. Cl. 118, 132-33, 455 F.2d 546, 555 (1972). Consideration of such oral assurances by defendant’s representatives would not be precluded by the parol evidence rule since plaintiffs proof would (if credited) show that the unclear and less-than-explicit appraisal forms were not meant as fully integrated and self-contained instruments, and therefore that Goldman’s agreement to \"accept the appraisal value” for each type of poultry was not intended to preclude additional monetary claims. See Restatement (Second) op Contracts § 240 (Tent. Draft No. 6, 1971); Nippon Hodo Co. v. United States, 142 Ct. Cl. 1, 4, 160 F. Supp. 501, 502 (1958); L.W. Packard & Co. v. United States, 66 Ct. Cl. 184, 192 (1928); Murray v. Lichtman, 339 F.2d 749, 751 (D.C. Cir. 1964). We add one caveat. To be taken into account the oral assurances by federal personnel on which plaintiff relies must not have been beyond the authority of those who spoke them. See Richards & Associates v. United" }, { "docid": "22625287", "title": "", "text": "operation. In a series of cases this court has held that monetary conditions, such as these, for permission to transfer a vessel are unlawful and beyond the Commission’s authority under Section 9 of the Shipping Act. Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576 (1954), cert. denied, 348 U.S. 834; Suwannee S.S. v. United States, 150 Ct. Cl. 331, 279 F. 2d 874 (1960); Seatrade Corp. v. United States, 152 Ct. Cl. 356, 285 F. 2d 448 (1961). Those claimants were allowed to recover the amounts illegally exacted. Plaintiff’s petition in this court sought (in count II) return of the $10,000 it was required to pay upon the approval of its sale to the Israeli company. In count I plaintiff sought damages for the Commission’s earlier failure to approve the potential sale to the Danish buyer. After the decisions in the three cases referred to above, plaintiff moved for summary judgment. On June 6, 1962, we granted the motion as to count. II, gave judgment for $10,000 on the authority of the prior decisions, but denied the motion as to count I, returning the case to the trial commissioner for further proceedings. Eastport S.S. v. United States, 157 Ct. Cl. 802. We are now concerned, after a trial, with the claim for damages, as set forth in count I. The gist of that grievance is that in the spring of 1949 the Commission deliberately withheld its consent to the foreign sale and transfer of the Eastport to the Danish buyer while the agency was secretly formulating an illegal policy of selling such approvals for money, and that this conduct gives rise to an action for damages, cognizable in this court, for loss of the Danish contract which expired for lack of Commission consent in May 1949. The trial commissioner examined at length the factual underpinning of this claim and made several findings favorable to plaintiff (although he ultimately decided against recovery). These findings are vigorously contested by defendant all along the line. We do not determine these factual issues because we believe that, even if the" }, { "docid": "22625340", "title": "", "text": "the testimony). We put to one side the possible applicability of the Declaratory Judgment Act, 28 U.S.C. § 2201. Other such cases are A. H. Bull S.S. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952) ; Pan American World Airways, Inc. v. United States, 129 Ct. Cl. 53, 122 F. Supp. 682 (1954) ; Gmo. Niehaus & Co. v. United States, 139 Ct. Cl. 605, 612, 153 F. Supp. 428, 432 (1957) ; Zavodny v. United States, 139 Ct. Cl. 533, 152 F. Supp. 432 (1957) ; and Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 351 P. 2d 636 (1965), cert. denied, 383 U.S. 957 (1966). There are many others. Contrast Catalina Properties, Inc. v. United States, 143 Ct. Cl. 657, 166 P. Supp. 763 (1958). And which do not fall under another head of jurisdiction, such as a contract with the united States. On this phase of the case, Clapp, Suwannee, Seatrade, and the earlier Mast-port decision are beside the point. The issue there was the recovery of sums illegally exacted. Here the question is the plaintiff’s right to compensation for business damage suffered because of its inability to follow through on the Danish transaction. Section 9, as applied here, does not differ In any meaningful way from the other license-type provisions. Plaintiff says it is significant that the Commission’s wrongful conduct was part of an effort to extract money. But the money has already been recovered, and we fail to see how the fact that the wrong was of that nature can affect the separate claim for damages for a business loss which could just as well have occurred if the Commission’s failure to approve the Danish sale had stemmed from some other improper motive or condition. The important factor is the existence of administrative error or wrong leading to injury, not the specific character of the particular defect. Plaintiff has also said that Congress has established special statutory methods for correcting the errors of other agencies, hot not those made by the Commission under Section 9. The premise Is not" }, { "docid": "22625286", "title": "", "text": "its close without Commission action, plaintiff made efforts to have its request disposed of within the time limit, and also obtained, as a last resort, a two-week extension from the Danish purchaser (from May 11 to May 25, 1949). The extended deadline passed without affirmative action by the Commission and the Danish firm canceled the contract. Months later, at the end of December 1949, after a sharp fall in the world market price, plaintiff contracted to sell the Eastport to an Israeli corporation for the lower price of $375,000 (and also subject to Commission approval of the foreign transfer). In March 1950 the Commission approved this application upon payment by plaintiff of “the sum of $10,000 as consideration for the release of the * * * Eastport from United States flag operation.” This condition was imposed under a policy, first formally adopted by the Commission in June 1949, of requiring owners of ex-German vessels to pay a monetary sum (differing with the individual ship) for the release of the vessels from the requirement of restricted operation. In a series of cases this court has held that monetary conditions, such as these, for permission to transfer a vessel are unlawful and beyond the Commission’s authority under Section 9 of the Shipping Act. Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576 (1954), cert. denied, 348 U.S. 834; Suwannee S.S. v. United States, 150 Ct. Cl. 331, 279 F. 2d 874 (1960); Seatrade Corp. v. United States, 152 Ct. Cl. 356, 285 F. 2d 448 (1961). Those claimants were allowed to recover the amounts illegally exacted. Plaintiff’s petition in this court sought (in count II) return of the $10,000 it was required to pay upon the approval of its sale to the Israeli company. In count I plaintiff sought damages for the Commission’s earlier failure to approve the potential sale to the Danish buyer. After the decisions in the three cases referred to above, plaintiff moved for summary judgment. On June 6, 1962, we granted the motion as to count. II, gave judgment for $10,000 on the authority of" }, { "docid": "21244426", "title": "", "text": "right under a statute, or under a legal doctrine implicit in a statute, does not effectively surrender that right by making a contract about it.” American President Lines, Ltd. v. United States, 154 Ct. Cl. 695, 705, 291 F. 2d 931, 936 (1961); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 U.S. 834 (1954); A. H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952). Under contracts made pursuant to section 603 (b), plaintiffs had a right to receive a subsidy not to exceed “the excess of the fair and reasonable cost of insurance, maintenance, repairs not compensated by insurance, wages and subsistence of officers and crews, and any other items of expense” as to which the board found plaintiffs to be at a substantial disadvantage in competition with foreign-flag' operators. Pertinent legislative history reveals that in making its determination as to which items a plaintiff was at a substantial disadvantage, the board certainly had authority, under the “fair and reasonable” language of the statute, to choose between suggested costs of both domestic and foreign items when more than one cost was suggested for a particular item. While the board had authority to make such a determination, section 603(b) did not authorize it to determine unilaterally what the “fair and reasonable” cost of a particular item might be in the instance where it believed the cost agreed to by the parties for that item was not “fair and reasonable.” The words “fair and reasonable” were not included in the merchant marine bills introduced in Congress in 1935. Those bills made reference to “the difference in cost of insurance, maintenance, repairs, and the wages and subsistence of of- fleers and crew * * U.S. Senate Hearings, Merchant Marine Act, 1935, 74th Cong., 1st Sess. 99 (1935) (on § 505 (c) of S. 2582 and H.R. 7521). The “fair and reasonable” language was suggested by the United States Shipping Board Bureau (SBB) during the House hearings on the bill. The SBB suggested that the “fair" }, { "docid": "21244425", "title": "", "text": "effect to the change in accounting methods and ordered that the amount of excess profits for the years in question be determined under the formerly applicable accounting method. In reaching its decision, the court noted that its analysis was supported by the pertinent legislative history since Congress, in enacting 46 U.S.C. § 1176 (5) (1964), had been concerned with attracting private capital to invest in the maritime industry rather than with maximizing recapture through its choice of a particular accounting method. Article 1-4 of our plaintiffs’ contracts provided that the subsidies paid to put American-flag shippers on a parity with their foreign-flag counterparts were to be determined by the MSB. These determinations, furthermore, were to be “final and conclusive.” Defendant now uses these contract provisions to support its argument that the MSB had absolute discretion to determine finally whether an item of expense was “fair and reasonable” in and of itself. This court, however, cannot give its imprimatur to defendant’s sweeping assertions. We have held on a number of occasions that “one who has a right under a statute, or under a legal doctrine implicit in a statute, does not effectively surrender that right by making a contract about it.” American President Lines, Ltd. v. United States, 154 Ct. Cl. 695, 705, 291 F. 2d 931, 936 (1961); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 U.S. 834 (1954); A. H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952). Under contracts made pursuant to section 603 (b), plaintiffs had a right to receive a subsidy not to exceed “the excess of the fair and reasonable cost of insurance, maintenance, repairs not compensated by insurance, wages and subsistence of officers and crews, and any other items of expense” as to which the board found plaintiffs to be at a substantial disadvantage in competition with foreign-flag' operators. Pertinent legislative history reveals that in making its determination as to which items a plaintiff was at a substantial disadvantage, the board certainly had authority, under the" }, { "docid": "21530239", "title": "", "text": "mortgage payments drawn from the reserve funds and allocated to tax deferred earnings. Since the tax deferred source of the funds used to originally acquire the ships here does not affect their bases for the investment credit, the identical result must follow where the funds are used to reduce the mortgages. Once the bases of the vessels are deter mined and the investment credit calculated, we hold that the tax deferred nature of the funds used to subsequently pay off the mortgages on the vessels is irrelevant. We recognize the IES litigating position as stated in Kev. Eul. 68-468, 1968-2 Cum. Bull. 26; however, again we refer to Allstate Insurance Co. v. United States, supra, and Biddle v. Commissioner, supra. One other point should be mentioned. It is not necessary to decide whether the reserve funds are tax-exempt or tax deferred since plaintiff prevails in that the closing agreement does not affect plaintiff’s basis for the investment credit. CONCLUSION For the reasons above, defendant’s motion for summary judgment is denied, plaintiff’s motion for summary judgment is granted, and the amount of recovery is to be determined pursuant to Eule 131(c). All section references are to tlie Internal Revenue Code of 1954 unless otherwise noted. All statutory references in this opinion regarding the Internal Revenue Code refer to applicable provisions in force for the years in question, 1962,1963, and 1964. In its companion case, Lykes Bros. S. S. Co. v. United States, 206 Ct. Cl. 354, 513 F. 2d 1342 (1975), judgment was also entered in favor of the plaintiff taxpayer. For a description and the purpose of the operating-differential subsidy program, see, e.g., Moore-McCormack Lines, Inc. v. United States, 188 Ct. Cl. 644, 413 F. 2d 568 (1969) ; American Export Isbrandtsen Lines, Inc. v. United States, 204 Ct. Cl. 424, 499 F. 2d 552 (1974) ; Farrell Lines Inc. v. United States, 204 Ct. Cl. 482, 499 F. 2d 587 (1974) ; Pacific Far East Line, Inc. v. United States, 184 Ct. Cl. 169, 394 F. 2d 990 (1968). As the program relates to the investment credit, see States" } ]

[ { "docid": "323416", "title": "", "text": "Seminole Tribe, 517 U.S. at 64-68, 116 S.Ct. 1114. A. The Mitchells first contend that they have not commenced a “suit” against the State. By its terms, the Eleventh Amendment only provides immunity in “suit[s] in law or equity.” Courts have found that certain bankruptcy proceedings do not constitute “suits” in the Eleventh Amendment sense. In Texas v. Walker, 142 F.3d 813, 820-22 (5th Cir.1998), cert. denied, 525 U.S. 1102, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999), for example, the Fifth Circuit found that a discharge order con cerning a debt owed to a state does not constitute a suit where the state is neither a defendant nor listed as a creditor. Similarly, in Virginia v. Collins (In re Collins), 173 F.3d 924, 929 (4th Cir.1999), cert. denied,—U.S.-, 120 S.Ct. 785, 145 L.Ed.2d 663 (2000), the court found that there was no Eleventh Amendment suit where the debtors asked for their bankruptcy case to be reopened — but did not directly sue the state — for a determination that certain debts owed the state were discharged pursuant to a previous discharge order. The Walker court noted, however, that “commencement of certain adversary proceedings directly against a state that has not filed a proof of claim in a bankruptcy case would” come within the scope of the Eleventh Amendment. Walker, 142 F.3d at 823; see also Maryland v. Antonelli Creditors’ Liquidating Trust, 123 F.3d 777, 786-87 (4th Cir.1997) (holding that while an original bankruptcy proceeding where “[t]he state is not named [as] a defendant” is not a suit, “an adversary proceeding” directly against the state would be). The Mitchells’ contention that Count 1 did not rise to the level of an Eleventh Amendment suit must fail, because they instituted an adversary proceeding directly against the State. In order to resolve their complaint, the Bankruptcy Court must make a separate determination specifically binding on the State as to whether particular debts owed to the State were discharged. See 28 U.S.C. § 157(b)(2)(I) (actions to determine the “dischargeability of particular debts” are within core bankruptcy jurisdiction). Although the Mitchells argue that Count 1" } ]

[ { "docid": "23214439", "title": "", "text": "dismiss the complaint, raising for the first time immunity from suit pursuant to the Eleventh Amendment. The Commission relied on Mitchell v. California Franchise Tax Bd. (In re Mitchell), 209 F.3d 1111 (9th Cir.2000), for the propositions that a dis-chargeability complaint constitutes a “suit” for Eleventh Amendment purposes, that 11 U.S.C. § 106(a) is unconstitutional under Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (“Seminole”), and therefore ineffective to abrogate the State’s sovereign immunity, that the defense is jurisdictional in nature and therefore can be raised at any time, and that no state official was named in the dischargeability complaint so the case could not proceed under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Sovereign Immunity and Bankruptcy The Ninth Circuit held in Mitchell that a dischargeability complaint constitutes a “suit” for Eleventh Amendment purposes. That is, it is the kind of bankruptcy proceeding to which a sovereign immunity defense can be raised, as distinguished from, for example, the entry of a discharge order, distinguishing Texas v. Walker, 142 F.3d 813, 820-22 (5th Cir.1998), cert. denied, 525 U.S. 1102, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999). 209 F.3d at 1116. Mitchell also held that 11 U.S.C. § 106(a) is unconstitutional because it was not an effort to remedy violations of rights protected by the Fourteenth Amendment. 209 F.3d at 1119. But what neither the Ninth Circuit nor the Supreme Court has yet determined in the post-Seminole era, however, is whether the Eleventh Amendment preserved states’ sovereignty over the subject of bankruptcies. As will be seen, this re quires a textual and historical analysis of the original Constitution and the framers’ understanding of those areas where states surrendered their sovereignty. It is a relatively easy conclusion to reach that if the Eleventh Amendment preserved the states’ sovereign immunity in bankruptcies, then it could not be abrogated by a mere Article I power that is subject to the later adopted Amendment. What is more difficult to determine, however, and which has not yet been addressed" }, { "docid": "3014468", "title": "", "text": "before his criminal trial was to commence, Lenke for the first time gave notice of his bankruptcy to the Superior Court and asserted that the criminal trial would violate his discharge injunction because it was a disguised effort to collect a discharged debt. The Superior Court informed Lenke that the trial would proceed unless he obtained injunctive relief from the Bankruptcy Court by April 21, 2000. Lenke filed a First Amended Complaint to Determine Dischargeability of Debt on April 5, and the present Application for injunctive relief on April 10, naming as defendants Tischler, the dissolved Corporation, Svejda, the State of Arizona, and the Maricopa County Prosecutor’s Office. After briefing by all parties, the Court heard oral argument on April 21, 2000 and ruled from the bench, denying both the State’s motion to dismiss and Lenke’s application for injunctive relief. This opinion amplifies the findings and conclusions issued from the bench in support of both of those rulings, particularly with respect to the proper roles of bankruptcy courts and state courts in light of sovereign immunity and the en banc opinion in Gruntz. Jurisdiction vs. sovereign immunity The threshold issue is jurisdictional. The State of Arizona has asserted Eleventh Amendment immunity which, if applicable, is jurisdictional. Mitchell v. Calif. Franchise Tax Bd. (In re Mitchell), 209 F.3d 1111 (9th Cir.2000). An ordinary discharge order may not constitute a “suit” for Eleventh Amendment purposes even if it discharges a debt owed to a state. Mitchell, supra, citing Texas v. Walker, 142 F.3d 813, 820-25 (5th Cir.1998), cert. denied, 525 U.S. 1102, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999) and Virginia v. Collins (In re Collins), 173 F.3d 924, 929 (4th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 785, 145 L.Ed.2d 663 (2000). But it does rise to the level of a “suit” when the state is named as a party to an adversary proceeding, and in such cases may be barred by the Eleventh Amendment. Mitchell, supra, citing Walker and Maryland v. Antonelli Creditor’s Liquidating Trust, 123 F.3d 777, 786-87 (4th Cir.1997). In Mitchell, the Ninth Circuit also considered and" }, { "docid": "3014467", "title": "", "text": "Lenke in Maricopa County Superi- or Court in December, 1998. After several continuances, trial was set for February 2, 2000. Lenke had filed an individual chapter 11 petition in March of 1996, and converted his case to chapter 7 in August, 1997. He did not list Tischler or the Corporation as creditors and did not give them notice of the bankruptcy. Lenke asserts that Tis-chler had notice of the bankruptcy case, however, because Tisehler’s attorney Mark Svejda (“Svejda”) filed a proof of claim on behalf of another creditor in that case, sought stay relief, conducted extensive discovery, opposed Lenke’s proposed plan of reorganization and ultimately forced the conversion to chapter 7. Because it is not necessary to the result, the Court makes no finding as to whether Tischler had notice of Lenke’s bankruptcy but will assume that he did. Tischler did not file any complaint objecting to the discharge of the “debt” Tischler believed Lenke owed him on account of the misappropriations from the Corporation, and Lenke’s discharge was entered in October, 1998. One day before his criminal trial was to commence, Lenke for the first time gave notice of his bankruptcy to the Superior Court and asserted that the criminal trial would violate his discharge injunction because it was a disguised effort to collect a discharged debt. The Superior Court informed Lenke that the trial would proceed unless he obtained injunctive relief from the Bankruptcy Court by April 21, 2000. Lenke filed a First Amended Complaint to Determine Dischargeability of Debt on April 5, and the present Application for injunctive relief on April 10, naming as defendants Tischler, the dissolved Corporation, Svejda, the State of Arizona, and the Maricopa County Prosecutor’s Office. After briefing by all parties, the Court heard oral argument on April 21, 2000 and ruled from the bench, denying both the State’s motion to dismiss and Lenke’s application for injunctive relief. This opinion amplifies the findings and conclusions issued from the bench in support of both of those rulings, particularly with respect to the proper roles of bankruptcy courts and state courts in light of sovereign" }, { "docid": "23214440", "title": "", "text": "the entry of a discharge order, distinguishing Texas v. Walker, 142 F.3d 813, 820-22 (5th Cir.1998), cert. denied, 525 U.S. 1102, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999). 209 F.3d at 1116. Mitchell also held that 11 U.S.C. § 106(a) is unconstitutional because it was not an effort to remedy violations of rights protected by the Fourteenth Amendment. 209 F.3d at 1119. But what neither the Ninth Circuit nor the Supreme Court has yet determined in the post-Seminole era, however, is whether the Eleventh Amendment preserved states’ sovereignty over the subject of bankruptcies. As will be seen, this re quires a textual and historical analysis of the original Constitution and the framers’ understanding of those areas where states surrendered their sovereignty. It is a relatively easy conclusion to reach that if the Eleventh Amendment preserved the states’ sovereign immunity in bankruptcies, then it could not be abrogated by a mere Article I power that is subject to the later adopted Amendment. What is more difficult to determine, however, and which has not yet been addressed in any reported decision that has come to this Court’s attention, is whether the original Constitution was intended to preserve states’ sovereignty over the subject of bankruptcies. Both Congress, in 11 U.S.C. § 106, and the Ninth Circuit in Mitchell, simply assumed that Eleventh Amendment immunity applied to bankruptcy cases just the same as it applied to all other suits, but closer examination of decades of Supreme Court Eleventh Amendment jurisprudence suggests that assumption may not be sound. Consequently, that is the first question that must be addressed. For over a century now, the law has been that the scope of the Eleventh Amendment is not to be determined by its words. That was the holding of Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), and in the following 110 years, the Supreme Court has not deviated from that holding. Indeed, particularly in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), the Court significantly expanded its approach. For that fundamental reason, simply because a proceeding" }, { "docid": "12779587", "title": "", "text": "2228 n. 3 (stating that Gardner “stands for the unremarkable proposition that a State waives its sovereign immunity by voluntarily invoking the jurisdiction of the federal courts”); see also California Franchise Tax Bd. v. Jackson (In re Jackson), 184 F.3d 1046, 1048-50 & n. 1 (9th Cir.1999) (relying on Gardner to find that the California Franchise Tax Board “waived its sovereign immunity when it filed a proof of claim for unpaid state income taxes against the Jacksons”). The question in this ease, then, is not whether a state waives its Eleventh Amendment immunity by filing a proof of claim in bankruptcy. Gardner establishes that it does. Gardner, 329 U.S. at 573-74, 67 S.Ct. 467. Rather, the relevant questions are the extent of this waiver and, more concretely, how this waiver applies to the State Board in the Mandamus Adversary. We now turn to these questions. a. The Rule of Gardner As the Fifth Circuit has recognized, “[t]he extent to which filing a proof of claim constitutes waiver of [Eleventh Amendment] immunity is uncertain.” Texas ex rel. Board of Regents of the Univ. of Tex. Sys. v. Walker, 142 F.3d 813, 820 (5th Cir.1998), cert. denied, 525 U.S. 1102, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999). Surely, as held in the Gardner decision, it encompasses defenses to the claim asserted. But does it extend to the assertion of a counterclaim, and if so, must the counterclaim arise out of the same transaction or occurrence as the state’s claim? If any counterclaim is permitted on this theory, is recovery limited to an offset of some or all of the state’s recoverable claim, or is an affirmative recovery permitted? Richard H. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 111-12 (4th ed. Supp.1999) [hereinafter Hart & Wechsler (Supp.1999) ]. Although we have never directly addressed these questions, we have applied Gardner in the past, and these past applications provide us with some guidance. First, in Confederated Tribes v. White (In re White), 139 F.3d 1268 (9th Cir.1998), we held, in accordance with Gardner, that by participating in a" }, { "docid": "7450470", "title": "", "text": "constitutional amendments.” Id. In essence, the Eleventh Amendment operates as a jurisdictional bar to suits filed in federal courts by private indi- victuals against an unconsenting state — absent waiver or congressional abrogation of sovereign immunity under section five of the Fourteenth Amendment. See U.S. Const, amend. XI; Seminole Tribe v. Florida, 517 U.S. 44, 56-58, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Further, Eleventh Amendment immunity applies not only to the states, but also to agencies of the states. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The Bankruptcy Code, as enacted in 1978, recognized the profound effect that state claims of sovereign immunity under the Eleventh Amendment could have on bankruptcy proceedings. Section 106 of the Bankruptcy Code, as originally enacted, provided for waiver of sovereign immunity in certain circumstances. In 1994, Congress amended § 106 to make clear its intention to abrogate sovereign immunity as to governmental units with respect to certain sections of the Bankruptcy Code. In amending 11 U.S.C. § 106, Congress specifically abrogated the States’ assertion of sovereign immunity in adversarial actions brought for a determination of dischargeability under § 523 of the Bankruptcy Code. 11 U.S.C. § 106(a)(1). Relying on Seminole Tribe, several lower courts, including the United States Court of Appeals for the Fifth Circuit, have held that § 106(a), which purports to abrogate sovereign immunity, violates the Eleventh Amendment and is therefore unconstitutional. See In re Estate of Fernandez, 123 F.3d 241 (5th Cir.1997); In re Schmitt, 220 B.R. 68, 71 (Bankr.W.D.Mo.1998). It is clear that Congress may not constitutionally abrogate state sovereign immunity in bankruptcy proceedings such as those in the present case. Based on those decisions, this case, as captioned, must be dismissed. When it held that “the determination of the dischargeability of a debt does not constitute a suit against the state,” the Bankruptcy Court relied upon Texas v. Walker, 142 F.3d 813 (5th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999). In Walker, the State of Texas filed suit against a university" }, { "docid": "7522311", "title": "", "text": "so unequivocally consented to jurisdiction. While it is not a basis for this decision, HESC’s actions should preclude its belated immunity argument, by estoppel. Alternatively, in the event of further appeals in this matter, we would agree with and adopt the holding of the Fourth Circuit Court of Appeals in Commonwealth of Virginia v. Collins (In re Collins), 173 F.3d 924 (4th Cir.1999), which held that a bankruptcy court’s ability to determine the dischargeability of a debt owed to a sovereign stems, not from jurisdiction over the sovereign, but from the bankruptcy court’s jurisdiction over the debtors and the estate. In Collins; the City of Norfolk obtained a judgment against a bail bondsman (Collins) for over $37,000. Collins and his wife filed a Chapter 7 petition, obtained their discharge(s), and the case was closed. Notwithstanding the discharge, the Commonwealth of Virginia commenced garnishment proceedings to collect on its judgment. Collins moved to reopen the bankruptcy case for a determination that the debt was dischargeable. The bankruptcy court found the debt to be dischargeable, and the district court affirmed. On appeal to the Fourth Circuit Court of Appeals, the Commonwealth for the first time raised the defense of sovereign immunity. The court of appeals stated: Here, a copy of the Collinses’ motion was served by mail on the Commonwealth. The Commonwealth, however, was not named as a defendant, was not served with process, and was not compelled to appear in bankruptcy court. The Commonwealth was free to respond to the motion or ignore it. In these circumstances, the motion to reopen was not a suit “against one of the United States” within the meaning of the Eleventh Amendment. See [Maryland v.] Antonelli [Creditors’ Liquidating Trust], 123 F.3d [777] at 787 [(4th Cir.)]. The Commonwealth chose to appear in bankruptcy court and oppose the Col-linses’ motion to reopen on the ground that the bail bond debt was nondis-chargeable.... A federal court’s jurisdiction over the dischargeability of debt, just like its jurisdiction to confirm a plan of reorganization, “derives not from jurisdiction over the state or other creditors, but rather from jurisdiction over" }, { "docid": "3014465", "title": "", "text": "OPINION RANDOLPH J. HAINES, Bankruptcy Judge. Debtor Jurgen Lenke (“Lenke” or “Debtor”) filed a Complaint to Determine Dischargeability of a Debt and an Application for Preliminary Injunction to enjoin his state criminal prosecution for theft. Defendant State of Arizona moved to dismiss, asserting Eleventh Amendment sovereign immunity and also arguing that the Ninth Circuit en banc decision in Gruntz v. County of L.A. (In re Gruntz), 202 F.3d 1074 (9th Cir.2000), precludes bankruptcy courts from enjoining a criminal prosecution even if it is a disguised effort by the prosecutor to enforce payment of a discharged debt. The Court concludes that neither the Eleventh Amendment nor Gruntz precludes the relief sought, and therefore denies the State’s Motion to Dismiss. But the Debtor has not shown either a likelihood of success on the merits nor imminent irreparable harm sufficient to warrant enjoining criminal prosecution, so the Debtor’s Application for Preliminary Injunction is also denied. Factual Background In 1995, Lenke joined with Reinhold Tis-chler (“Tischler”) to form a corporation, Boulder Canyon Ranch, Inc. (the “Corporation”), to conduct horseback riding tours in the Tonto National Forest north of Scottsdale, Arizona. They were each to invest $50,000, but Lenke was to do all the work and run the business. Either shareholder could dissolve the corporation by-written notice to the other. Within less than a year Tischler became dissatisfied and suspicious of Lenke’s running of the business and elected to dissolve the corporation. Upon inspecting the corporate books and records he concluded that Lenke had used corporate funds for personal purposes, had withdrawn his own capital investment, had paid himself an unauthorized salary, and had otherwise misappropriated corporate funds and assets. In March, 1997, Tischler filed a criminal complaint against Lenke with the Maricopa County Sheriffs Office, alleging that Lenke had stolen or embezzled approximately $30,000 from the corporation. The Maricopa County Attorney’s Office investigated the case and filed a criminal complaint against Lenke in the Maricopa County Justice Court, which conducted a probable cause hearing and concluded probable cause existed for a criminal action to proceed against Lenke. Consequently a criminal complaint was lodged against" }, { "docid": "12779588", "title": "", "text": "rel. Board of Regents of the Univ. of Tex. Sys. v. Walker, 142 F.3d 813, 820 (5th Cir.1998), cert. denied, 525 U.S. 1102, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999). Surely, as held in the Gardner decision, it encompasses defenses to the claim asserted. But does it extend to the assertion of a counterclaim, and if so, must the counterclaim arise out of the same transaction or occurrence as the state’s claim? If any counterclaim is permitted on this theory, is recovery limited to an offset of some or all of the state’s recoverable claim, or is an affirmative recovery permitted? Richard H. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 111-12 (4th ed. Supp.1999) [hereinafter Hart & Wechsler (Supp.1999) ]. Although we have never directly addressed these questions, we have applied Gardner in the past, and these past applications provide us with some guidance. First, in Confederated Tribes v. White (In re White), 139 F.3d 1268 (9th Cir.1998), we held, in accordance with Gardner, that by participating in a bankruptcy proceeding, an Indian tribal government “waived sovereign immunity respecting the adjudication of its claim against [the debt- or's assets.” Id. at 1270. In so holding, we upheld the district court’s order affirming discharge of the tribal government’s claim under Chapter 7 of the Bankruptcy Code. See id. at 1268. Similarly, in California Franchise Tax Board v. Jackson (In re Jackson), 184 F.3d 1046 (9th Cir.1999), we determined that because a state agency filed a proof of claim, it was not immune from the bankruptcy court’s discharge of that claim. Id. at 1048-50. These two decisions clarified the rule of Gardner: that when a state files a proof of claim against a debtor, it waives its Eleventh Amendment immunity with respect to the adjudication of that particular claim. Or, as the Gardner Court stated, by filing a proof of claim in bankruptcy, the state waives its immunity from “[t]he whole process of proof, allowance, and distribution” of the claim. Gardner, 329 U.S. at 574, 67 S.Ct. 467. In Jackson, however, we indicated that this waiver" }, { "docid": "323417", "title": "", "text": "discharged pursuant to a previous discharge order. The Walker court noted, however, that “commencement of certain adversary proceedings directly against a state that has not filed a proof of claim in a bankruptcy case would” come within the scope of the Eleventh Amendment. Walker, 142 F.3d at 823; see also Maryland v. Antonelli Creditors’ Liquidating Trust, 123 F.3d 777, 786-87 (4th Cir.1997) (holding that while an original bankruptcy proceeding where “[t]he state is not named [as] a defendant” is not a suit, “an adversary proceeding” directly against the state would be). The Mitchells’ contention that Count 1 did not rise to the level of an Eleventh Amendment suit must fail, because they instituted an adversary proceeding directly against the State. In order to resolve their complaint, the Bankruptcy Court must make a separate determination specifically binding on the State as to whether particular debts owed to the State were discharged. See 28 U.S.C. § 157(b)(2)(I) (actions to determine the “dischargeability of particular debts” are within core bankruptcy jurisdiction). Although the Mitchells argue that Count 1 is “essentially a petition,” the complaint particularly requests a determination of dischargeability with respect to “all defendants,” including the FTB and the Board. Such a determination entails the exercise of in personam jurisdiction over the State in contrast to the bankruptcy court’s general in rem jurisdiction over the property of the estate. See Collins, 173 F.3d at 930 (distinguishing “jurisdiction over the debt- or and his estate” from “bankruptcy court jurisdiction over the state”). Unlike a general discharge order, in the present case, a summons was served on the State, such that it was required to respond to the Mitchells’ complaint. See NVR Homes, Inc. v. Clerks of the Circuit Courts (In Re NVR), 189 F.3d 442, 451 (4th Cir.1999) (utilizing “coercion ... to attend” and the requirement of “jurisdiction over the state” as factors in analyzing whether a proceeding constituted a “suit” under the Eleventh Amendment), cert. denied, — U.S.-, 120 S.Ct. 936, 145 L.Ed.2d 815 (2000); cf. Collins, 173 F.3d at 929 (“The Commonwealth ... was not named as a defendant, was not" }, { "docid": "23214438", "title": "", "text": "the determination of Cole’s entitlement to benefits was made. Debtor further maintained that she had received a letter from the Commission stating that March 24, 1995 was the date that the determination became final, and that Debt- or relied on this representation in deciding to file her chapter 7 petition, raising an estoppel argument. Oral argument was heard on May 31, 2000. After extensive exploration of numerous issues, the Court requested supplemental briefing on (1) the nature of an excise tax, (2) the kinds of “transactions” that are subject to excise taxes, (3) case law addressing the dates of transactions that give rise to various excise taxes, and (4) any other decisions on the issue, whether published or not, including the status of In re DeRoche, 94-10496-PHX-CGC (Bankr.D.Ariz. March 27, 1998), aff'd, De-Roche v. Industrial Comm’n (In re DeRoche), 98-1270-PHX-EHC (D.Ariz. March 25, 1999), appeal filed May 25, 1999, which is currently awaiting oral argument before the Ninth Circuit. Simultaneously with filing its supplemental brief on July 7, 2000, the Commission filed a motion to dismiss the complaint, raising for the first time immunity from suit pursuant to the Eleventh Amendment. The Commission relied on Mitchell v. California Franchise Tax Bd. (In re Mitchell), 209 F.3d 1111 (9th Cir.2000), for the propositions that a dis-chargeability complaint constitutes a “suit” for Eleventh Amendment purposes, that 11 U.S.C. § 106(a) is unconstitutional under Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (“Seminole”), and therefore ineffective to abrogate the State’s sovereign immunity, that the defense is jurisdictional in nature and therefore can be raised at any time, and that no state official was named in the dischargeability complaint so the case could not proceed under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Sovereign Immunity and Bankruptcy The Ninth Circuit held in Mitchell that a dischargeability complaint constitutes a “suit” for Eleventh Amendment purposes. That is, it is the kind of bankruptcy proceeding to which a sovereign immunity defense can be raised, as distinguished from, for example," }, { "docid": "323418", "title": "", "text": "is “essentially a petition,” the complaint particularly requests a determination of dischargeability with respect to “all defendants,” including the FTB and the Board. Such a determination entails the exercise of in personam jurisdiction over the State in contrast to the bankruptcy court’s general in rem jurisdiction over the property of the estate. See Collins, 173 F.3d at 930 (distinguishing “jurisdiction over the debt- or and his estate” from “bankruptcy court jurisdiction over the state”). Unlike a general discharge order, in the present case, a summons was served on the State, such that it was required to respond to the Mitchells’ complaint. See NVR Homes, Inc. v. Clerks of the Circuit Courts (In Re NVR), 189 F.3d 442, 451 (4th Cir.1999) (utilizing “coercion ... to attend” and the requirement of “jurisdiction over the state” as factors in analyzing whether a proceeding constituted a “suit” under the Eleventh Amendment), cert. denied, — U.S.-, 120 S.Ct. 936, 145 L.Ed.2d 815 (2000); cf. Collins, 173 F.3d at 929 (“The Commonwealth ... was not named as a defendant, was not served with process, and was not compelled to appear in bankruptcy court.”). The Mitchells further argue that because they did not request affirmative monetary relief, there is no suit. While courts generally construe “action leading to an order forcing a payment to citizens [as] the quintessential ‘suit’ under the Eleventh Amendment,” In re NVR Homes, 189 F.3d at 453, this factor is not dispositive. See id.; Motrell v. Franchise Tax Bd. (In re Morrell), 218 B.R. 87, 89-90 (Bankr.C.D.Cal.1997) (holding debtor’s complaint to determine dischargeability of tax debt barred by Eleventh Amendment). Moreover, a decision in favor of the Mitchells would effectively prevent the State from collecting monies otherwise due to it, and it is difficult to draw a rational distinction between a bankrupt’s attempt to recover funds already paid to the state from one that seeks to discharge present debts to the state. Finally, suits only requesting non-monetary relief do not divest the state of its immunity. See Seminole Tribe, 517 U.S. at 58, 116 S.Ct. 1114 (“The Eleventh Amendment does not exist solely" }, { "docid": "184677", "title": "", "text": "of the Bankruptcy Code, Congress has exceeded its authority under § 5 of the Fourteenth Amendment. V. Conclusion The bankruptcy court’s order denying the DOT’s motion to dismiss the Damages Suit was premised on an incorrect application of the law of the case doctrine that overlooked the factual differences between the Fee Order at issue in Straight I and Straight II and the Damages Suit. Moreover, because § 106(a) represents an invalid attempt to abrogate the DOT’s sovereign immunity, the Damages Suit must be dismissed. The bankruptcy court’s order is REVERSED, and the case is remanded for entry of an order granting the DOT’s motion to dismiss. . In a prior order, pursuant to 28 U.S.C. § 2403(a), the Court sua sponte directed the Clerk of Court to certify to the United States Attorney General the constitutional question raised here about 11 U.S.C. § 106(a). The Attorney General has not intervened in this appeal. . For further description of the DBE program, see. Adarand Constructors, Inc. v. Slater, - U.S. -, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000). . The Court entered an order requiring the parties to file supplemental briefs addressing the effect of the conversion of Straight's case. In response, the New York County Lawyers’ Association, an amicus curiae in this appeal, filed a supplemental brief. The DOT has moved to strike the supplemental brief, and the amicus curiae has filed an objection to the DOT’s motion to strike. The motion to strike is denied. . The States' sovereign (or \"Eleventh Amendment”) immunity protects them from a \"suit.” Recent case law indicates that courts are struggling to define \"suit” in a bankruptcy context when sovereign immunity is at issue. See Virginia v. Collins (In re Collins), 173 F.3d 924 (4th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 785, 145 L.Ed.2d 663 (2000) (finding that a motion to reopen and determine that a debt was discharged was not a \"suit” against a state that implicated the Eleventh Amendment); Maryland v. Antonelli Creditors' Liquidating Trust, 123 F.3d 777 (4th Cir.1997) (a confirmation order was not a \"suit” against the" }, { "docid": "6583871", "title": "", "text": "of “the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit.” Ford Motor Co., 323 U.S. at 464, 65 S.Ct. 347. In Schlossberg, 119 F.3d at 1140, Maryland v. Antonelli Creditors’ Liquidating Trust, 123 F.3d 777 (4th Cir.1997), and most recently in Virginia v. Collins, 173 F.3d 924 (4th Cir.1999), we distinguished the exercise of a federal court’s jurisdiction to dispose of a debtor’s estate from a suit against a state. In Schlossberg, a trustee brought an action against the State of Maryland to recover a state income tax payment that was alleged to be a preferential transfer. See Schlossberg, 119 F.3d at 1142. We held that an adversary proceeding initiated by the debtor’s estate, seeking a return of property from the state, violated the Eleventh Amendment and was impermissible unless the state had waived its immunity. See id. at 1147. Antonelli presented a very different scenario. In that case, the State of Maryland brought suit in state court to recover unpaid transfer and recordation taxes from the Antonelli Creditor’s Liquidating Trust (the Trust), a creation of the bankruptcy process. See Antonelli, 123 F.3d at 779. The Trust removed the case to federal court and defended on the ground that the state transfer and recordation taxes were exempt under § 1146(c) of the Bankruptcy Code pursuant to the original bankruptcy court disposition. See id. Maryland claimed that it was immune not from the immediate proceeding, but from the effects of the original bankruptcy proceeding, which resulted in the order exempting the taxes. See id. at 781. We disagreed. Central to our holding was the fact that [t]he state was not named a defendant, nor was it served with process mandating that it appear in a federal court. While it was served with notice of the proposed plan and its confirmation, it was free to enter federal court voluntarily or to refrain from doing so. This is to be distinguished from the case in which a debtor, a" }, { "docid": "6583870", "title": "", "text": "one’s right.... Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 407-08, 5 L.Ed. 257 (1821) (internal quotation marks omitted). Later, the Supreme Court observed that suits could be defined by looking to “the essential nature and effect of the proceeding.” Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945); see also In re New York, 256 U.S. 490, 500, 41 S.Ct. 588, 65 L.Ed. 1057 (1921) (holding that a determination under the Eleventh Amendment requires “that the question is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record”). A thorough analysis of whether a judicial proceeding constitutes a suit must accordingly consider both the procedural posture and substantive nature of the proceeding. Moreover, if the substance of “the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit.” Ford Motor Co., 323 U.S. at 464, 65 S.Ct. 347. In Schlossberg, 119 F.3d at 1140, Maryland v. Antonelli Creditors’ Liquidating Trust, 123 F.3d 777 (4th Cir.1997), and most recently in Virginia v. Collins, 173 F.3d 924 (4th Cir.1999), we distinguished the exercise of a federal court’s jurisdiction to dispose of a debtor’s estate from a suit against a state. In Schlossberg, a trustee brought an action against the State of Maryland to recover a state income tax payment that was alleged to be a preferential transfer. See Schlossberg, 119 F.3d at 1142. We held that an adversary proceeding initiated by the debtor’s estate, seeking a return of property from the state, violated the Eleventh Amendment and was impermissible unless the state had waived its immunity. See id. at 1147. Antonelli presented a very different scenario. In that case, the State" }, { "docid": "3014469", "title": "", "text": "immunity and the en banc opinion in Gruntz. Jurisdiction vs. sovereign immunity The threshold issue is jurisdictional. The State of Arizona has asserted Eleventh Amendment immunity which, if applicable, is jurisdictional. Mitchell v. Calif. Franchise Tax Bd. (In re Mitchell), 209 F.3d 1111 (9th Cir.2000). An ordinary discharge order may not constitute a “suit” for Eleventh Amendment purposes even if it discharges a debt owed to a state. Mitchell, supra, citing Texas v. Walker, 142 F.3d 813, 820-25 (5th Cir.1998), cert. denied, 525 U.S. 1102, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999) and Virginia v. Collins (In re Collins), 173 F.3d 924, 929 (4th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 785, 145 L.Ed.2d 663 (2000). But it does rise to the level of a “suit” when the state is named as a party to an adversary proceeding, and in such cases may be barred by the Eleventh Amendment. Mitchell, supra, citing Walker and Maryland v. Antonelli Creditor’s Liquidating Trust, 123 F.3d 777, 786-87 (4th Cir.1997). In Mitchell, the Ninth Circuit also considered and rejected the argument that Bankruptcy Code § 106(a) constituted a valid Congressional abrogation of Eleventh Amendment immunity which survived the Eleventh Amendment because it was passed pursuant to Congress’ remedial powers under the Fourteenth Amendment. Because this is an adversary proceeding in which the State of Arizona was named and served as a defendant, Mitchell renders the State immune from the suit under the Eleventh Amendment. But just because the State of Arizona is immune from this adversary proceeding does not mean that no effective relief could be granted. The Maricopa County Prosecutor’s Office is also a named party. It is not clear whether the intent was to name the County, the County Attorney, or all the attorneys in the County Attorney’s office. In either case, however, such a suit could proceed despite the State’s Eleventh Amendment immunity. The County is a political subdivision of the State, but because it is also a separate “body politic and corporate,” A.R.S. § 11-202(A), it is generally not regarded as sharing the State’s Eleventh Amendment immunity. Lincoln County" }, { "docid": "6583864", "title": "", "text": "the bankruptcy period. II. “We review the judgment of a district court sitting in review of a bankruptcy court de novo, applying the same standards of review that were applied in the district court.” Three Sisters Partners, L.L.C. v. Harden (In re Shangra-La, Inc.), 167 F.3d 843, 847 (4th Cir.1999). Specifically, “[w]e review the bankruptcy court’s factual findings for clear error, while we review questions of law de novo.” Loudoun Leasing Dev. Co. v. Ford Motor Credit Co. (In re K & L Lakeland, Inc.), 128 F.3d 203, 206 (4th Cir.1997). Because each of the questions present a purely legal issue, our review is de novo. A. Since the Supreme Court issued Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), states have hotly contested the extent of their Eleventh Amendment immunity in federal bankruptcy proceedings. During the past three years, this Court alone has published three opinions clarifying the issue. See Virginia v. Collins (In re Collins), 173 F.3d 924 (4th Cir.1999); Maryland v. Antonelli Creditors’ Liquidating Trust, 123 F.3d 777 (4th Cir.1997); Schlossberg v. Maryland (In re Creative Goldsmiths), 119 F.3d 1140 (4th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998). In the case now before us, two states, Maryland and Pennsylvania, again claim Eleventh Amendment immunity from federal jurisdiction in a bankruptcy proceeding. They argue that the lower courts’ decisions holding certain transfers exempt from state taxes under 11 U.S.C.A. § 1146(c) (West 1993) can be viewed in only one of two ways: either the ruling was advisory and thus constitutionally impermissible, or the proceeding itself amounted to a “suit” from which Maryland and Pennsylvania were immune under the Eleventh Amendment. If the Eleventh Amendment does grant the states immunity, then the federal courts are deprived of jurisdiction over claims against the states. See Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The protracted history of the Eleventh Amendment supports Maryland’s and Pennsylvania’s claims of immunity, and, therefore, we are bound to vacate the action to the extent it applies to" }, { "docid": "7256932", "title": "", "text": "Virginia’s motion to dismiss (pressing arguments similar to those heard by this Court in the instant matter) a pro se debtor's adversary proceeding to determine the dischargeabilty of his student loan debt under Code § 523(a)(8). Relying on a recent Fourth Circuit Court of Appeals decision, In re Collins, 173 F.3d 924 (4th Cir.1999), the court held that \"when discharge is at issue, the jurisdictional power of the bankruptcy court derives from control over the debtor and federal supremacy with respect to bankruptcy trumps any Eleventh Amendment claim of immunity by the state.” 237 B.R. at 127. While this approach is insightful, it has not been recognized by the Third Circuit Court of Appeals. Rather Sacred Heart is complete on its face in holding that there is no abrogation of sovereign immunity in bankruptcy court. Another recent decision to garner this Court’s attention is In re Greenwood, 237 B.R. at 128. The Court finds this case noteworthy in that it is the only reported decision in which the Coordinating Board is named as a defendant in a Code § 523(a)(8) proceeding. In that case the Board filed a motion to dismiss the proceeding against it raising virtually the same arguments asserted here. The district court in Greenwood reversed a decision of the bankruptcy court which held, inter alia, that a determination of the discharge-ability of a debt does not constitute a suit against the state. The district court, noting the bankruptcy court’s reliance on Texas v. Walker, 142 F.3d 813 (5th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999), found that Walker dealt only with cases in which the State does not participate in any fashion. The district court, after determining that the Board is a state agency, 237 B.R. at 130, went on to hold that \"it is clear that a[sic] adversary proceeding brought in federal court against a state agency to determine the dischargeability of student loans is in actuality a suit against the state. That being the case, the adversary proceeding brought by Greenwood against the Board is barred by the Eleventh" }, { "docid": "184678", "title": "", "text": "L.Ed.2d 650 (2000). . The Court entered an order requiring the parties to file supplemental briefs addressing the effect of the conversion of Straight's case. In response, the New York County Lawyers’ Association, an amicus curiae in this appeal, filed a supplemental brief. The DOT has moved to strike the supplemental brief, and the amicus curiae has filed an objection to the DOT’s motion to strike. The motion to strike is denied. . The States' sovereign (or \"Eleventh Amendment”) immunity protects them from a \"suit.” Recent case law indicates that courts are struggling to define \"suit” in a bankruptcy context when sovereign immunity is at issue. See Virginia v. Collins (In re Collins), 173 F.3d 924 (4th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 785, 145 L.Ed.2d 663 (2000) (finding that a motion to reopen and determine that a debt was discharged was not a \"suit” against a state that implicated the Eleventh Amendment); Maryland v. Antonelli Creditors' Liquidating Trust, 123 F.3d 777 (4th Cir.1997) (a confirmation order was not a \"suit” against the state); University of Va. v. Robertson, 243 B.R. 657, 662-65 (W.D.Va.2000) (concluding that an adversary proceeding to determine the dischargeability of a student loan was a \"suit” as contemplated by the Eleventh Amendment); accord Pitts v. Ohio Dep’t of Taxation (In re Pitts), 241 B.R. 862, 869-70 (Bankr.N.D.Ohio 1999) (applying a six-factor test to determine if the substance of the underlying action constituted a \"suit” for Eleventh Amendment purposes, and finding lien avoidance and dischargeability actions to be a \"suit”); In re Barrett Refining Corp., 221 B.R. 795, 801-08 (Bankr.W.D.Okla.1998) (bankruptcy cases are not \"suits” covered by Eleventh Amendment). The bankruptcy court ruled that if Straight wanted monetary damages from the DOT, an adversary proceeding would be necessary under Fed. R. Bankr.P. 7001. We conclude that the Damages Suit — filed in accord with the bankruptcy court’s instruction, naming the DOT as a defendant, serving it with process summoning it to appear before the bankruptcy court, and seeking the recovery of money from it — is an “action asking the court to take away an" }, { "docid": "7450471", "title": "", "text": "106, Congress specifically abrogated the States’ assertion of sovereign immunity in adversarial actions brought for a determination of dischargeability under § 523 of the Bankruptcy Code. 11 U.S.C. § 106(a)(1). Relying on Seminole Tribe, several lower courts, including the United States Court of Appeals for the Fifth Circuit, have held that § 106(a), which purports to abrogate sovereign immunity, violates the Eleventh Amendment and is therefore unconstitutional. See In re Estate of Fernandez, 123 F.3d 241 (5th Cir.1997); In re Schmitt, 220 B.R. 68, 71 (Bankr.W.D.Mo.1998). It is clear that Congress may not constitutionally abrogate state sovereign immunity in bankruptcy proceedings such as those in the present case. Based on those decisions, this case, as captioned, must be dismissed. When it held that “the determination of the dischargeability of a debt does not constitute a suit against the state,” the Bankruptcy Court relied upon Texas v. Walker, 142 F.3d 813 (5th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999). In Walker, the State of Texas filed suit against a university professor in state court alleging that he improperly retained professional fees. Id. at 815-16. The professor counterclaimed and the case was ultimately removed to federal court by the other counter-defendants. Id. In his successful motion for summary judgment, Walker asserted the affirmative defense of discharge in bankruptcy to the State’s claim. On appeal, the State invoked the Eleventh Amendment and claimed that Walker’s discharge order entered in the main bankruptcy case was ineffective as against the State. Id at 819. Judge Edith Jones, writing for the court, stated that “the precise issue here is whether the Eleventh Amendment prevents the discharge of a debt owed to a state in a bankruptcy proceeding in which the state does not participate in any fashion.” Id. at 820 (emphasis added). In holding that it does not, the court confined its opinion to “mean only that the discharge may be raised as a defense to the state’s suit on the debt.” Id. Thus, the court’s holding in Walker deals only with cases in which the State does not participate" } ]

[ { "docid": "4774283", "title": "", "text": "services herein and $2,337.47 for disbursements. The services rendered herein have been documented and are payable (§ 503(b)(3)(D)) based upon substantial contribution to these cases as a party in interest pursuant to Section 1109(b) of the Bankruptcy Code. Weber, Lipshie & Co., accountants for the creditors’ committee in PDI, seek compensation in the sum of $132,293.75 and disbursements of $13,811.16 for a total of 2.126.25 hours. Interim allowances of $87,-220.25 and disbursements of $11,813.03 have been paid. This applicant now seeks approval of amounts held back from interim grants. No premium in excess of regular hourly time charges is sought. A review of all of their applications indicates that applicant has had a substantial impact in the negotiations and formulation of the plan of reorganization and in providing essential analysis in aid of the creditor committee watchdog functions over the continued operations of the debtors. The compensation requested is fair and reasonable. DISCUSSION The relevant criteria for awarding attorney’s fees was formerly governed by Bankruptcy Rule 219, which generally directed the courts to allow compensation giving “due consideration to the nature, extent, and value of the services rendered as well as to the conservation of the estate and the interests of creditors”. Thus an emphasis on principles of economy cut across all other considerations in formulating awards. Fee awards are now governed by Section 330 of the Code which provides: (a) After notice and a hearing, the court may award to the attorney for the debtor (1) Reasonable compensation for actual, necessary services rendered based on time, nature, extent and value of such services and the cost of comparable services other than in a case under this title, and (2) Reimbursement for actual, necessary expenses, (emphasis added) This liberal standard of compensation marks a sharp cleavage from past practices which tended to preclude many highly qualified practitioners from entering the bankruptcy field. The rationale for the change is clearly set forth in the House Report on Section 330 : to encourage successful administration of estates by attracting bankruptcy specialists of high quality. While the spirit of strict economy of the" } ]

[ { "docid": "22209544", "title": "", "text": "bankruptcy case supersedes a general assignment for the benefit of creditors or a receivership the Bankruptcy Code permits expenses incurred in those proceedings to enjoy an administrative priority. See 11 U.S.C. § 503(b)(3)(E); 11 U.S.C. § 543(c)(2). In their joint statement, the floor managers explained that “[section 503(b)(3)(E) codifies present law in cases such as Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165, which accords administrative expense status to services rendered by a prepetition custodian or other party to the extent such services actually benefit the estate.” 124 Cong. Rec. H11095 (daily ed. Sept. 29, 1978) (remarks of Representative Edwards); 124 Cong.Rec. S17411 (daily ed. Oct. 6, 1978) (remarks of Senator DeConcini). (Emphasis added). It is argued, with some cogency, that this provision authorizes the bankruptcy court to make an allowance of pre-petition attorneys’ fees incurred on behalf of the unofficial creditors’ committee as an administrative expense. It is therefore not surprising that one bankruptcy court has interpreted the words “or other party” in the statement of the floor managers to include a committee of creditors. See In re Med General, Inc., 17 B.R. 13, 14 (Bkrtcy.D.Minn.1981) (court saw no reason to distinguish between beneficial results of committee’s prepetition activity and its postpet-ition activity). Prior to the Supreme Court’s decision in Randolph v. Scruggs, supra, 190 U.S. at 533, 23 S.Ct. at 710, the courts were split on the issue of whether an assignee and professionals employed by him under a general assignment for the benefit of creditors were entitled to their expenses as an administrative priority in a superseding bankruptcy case. See generally, 3A COLLIER ON BANKRUPTCY ¶ 62.32, at 1617 (14th ed.1975). In Randolph, an assignee was appointed by the Langstaff Hardware Company under the general assignment law of Tennessee on August 13, 1900. The deed of assignment conveyed all of the debtor’s corporate property to the assignee for pro-rata distribution to its creditors and provided that the assignee should pay reasonable attorneys’ fees for preparing the deed and for advising and counseling the assignee in the course of his administration of the trust." }, { "docid": "15783292", "title": "", "text": "aid of the administration of the estate and the carrying out of the provisions of the act.” Conrad, Rubin & Lesser v. Pender (1933) 289 U.S. 472, at page 476, 53 S.Ct. 703, 704, 77 L.Ed. 1327. Only those services are considered as being in aid of the administration of the estate which result in the benefit of it. Randolph v. Scruggs (1903) 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165; In re Evenod Perfumer, Inc. (D.C.N.Y.1933) 4 F.Supp. 916; In re Evenod Perfumer (C.C.A.2, 1933) 67 F.(2d) 878; In re Rothman et al. (D.C.N.Y.1936) 14 F.Supp. 241; In re Rothman et al., Glazer et al. v. Joliffe (C.C.A. 2, 1936), 85 F.(2d) 51. Prior to its amendment in 1926, this section specified that in involuntary cases, the allowance of attorney’s fees to the bankrupt was to be for services rendered “while performing the duties” prescribed in the act. Bankr.Act, § 62b (3), 11 U.S. C.A. § 104(b) (3). It was then held that the duties referred to were those imposed upon the bankrupt by section 7 of the act (11 U.S.C.A. § 25). See In re Lane Lumber Co. (D.C.Idaho, 1913) 206 F. 780, 783; Whitla & Nelson v. Boyd (C.C.A.9, 1914) 213 F. 587, The principle that fees for services in aid of the administration of the estate should be upon the basis of benefit to it, forbids allowance of fees for services rendered to the bankrupt prior to the institution \"of bankruptcy proceedings, whether they related to litigation pertaining to the bankrupt’s affairs or actually involved negotiations with creditors for the settlement of their claims without resort to bankruptcy (Magee v. Fox [C.C.A.2, 1916] 229 F. 395; Conrad, Rubin & Lesser v. Pender, supra; In re Munford [D.C.N.C.1919] 255 F. 108; In re Taylor [D.C.Wyo.1922] 280 F. 127; In re National Accessories [D.C.Neb.1936] 13 F.Supp. 278, 281); or for resisting adjudication (Randolph v. Scruggs, supra; Pratt v. Bothe [C.C.A.6, 1904] 130 F. 670; In re Evenod Perfumer, Inc., supra; In re Rothman, supra); or for defending the bankrupt against charges of fraud or concealment of assets," }, { "docid": "20274711", "title": "", "text": "debtor’s counsel and debtor enter into a Model Retention Agreement, then counsel may apply for a flat fee not to exceed $3500. Bankr.N.D. Ill. R. 5082-2. If the debtor’s counsel and debtor have not entered into a Model Retention Agreement, then counsel must include a completed form itemization with the fee application. Id. Section 503 of the Bankruptcy Code provides for the “allowance” of administrative expenses and derives its importance from section 507. 4 CollieR, If 503.01. Section 507 provides that certain categories of expenses and claims have priority in the distribution of the assets of the estate. Id. Specifically, section 507(a)(2) sets forth second priority for administrative expenses allowed under section 503(b). Id. Thus, section 503(b)(2) provides: (b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including— (2) compensation and reimbursement awarded under section 330(a) of this title[.] 11 U.S.C. § 503(b)(2). Section 507(a)(2) then provides: (a) The following expenses and claims have priority in the following order: (2) Second, administrative expenses allowed under section 503(b) of this title, and any fees and charges assessed against the estate under chapter 123 of title 28. 11 U.S.C. § 507(a)(2) (2006). In a Chapter 13 case, section 330(a)(4)(B) provides that the court may allow reasonable compensation to the debt- or’s attorney for representing the interests of the debtor in connection with the bankruptcy case. 11 U.S.C. § 330(a)(4)(B); see also In re Met-L-Wood Corp., 103 B.R. 972, 975 (Bankr.N.D.Ill.1989). In addition, section 331, in conjunction with Bankruptcy Rule 2016, allows any professional person employed pursuant to § 327 or § 1103 of the Code, to apply to the court for interim compensation and reimbursement. In re Met-L-Wood Corp., 103 B.R. at 975-76 (citing 11 U.S.C. § 331). Moreover, the allowance of a claim for reasonable compensation to the debtor’s attorney is an administrative expense, entitled to priority distribution under 11 U.S.C. § 507. See id. at 976. To determine whether to approve an interim compensation application, the court must weigh important competing interests. Id. For instance, the primary" }, { "docid": "18561907", "title": "", "text": "stipulation between Mallozzi and Pena, this surplus will be divided between them. For a number of reasons, no allowance can be made Weiner & Silverman. Neither Kenneth Silverman, Esq., nor Weiner & Silverman, Esqs., were ever authorized by this Court to act as attorneys for the debtor. No authorization was needed for Horwitz & Associates, P.C., because they were retained by the debtor prior to the time the debtor filed for relief under the bankruptcy law. Horwitz & Associates has no authority to retain other attorneys as counsel and thereby give such attorneys a share in the fee payable to them as attorneys for the debtor. 11 U.S.C. § 504 squarely prohibits the sharing of compensation received by a professional. It states flatly that a person ' receiving compensation under § 503(b)(2) (which covers the allowance now being requested by the attorney for the debtor) “may not share ... any such compensation or reimbursement with another person”. To avoid any possible ambiguity, § 504 goes on to permit lawyers “in a professional associate, corporation or partnership” to share compensation with other members, partners or associates. It thus makes crystal clear that there cannot be any sharing based on the employment as counsel of a second firm. No compensation can be awarded Weiner & Silverman in the name of Horwitz & Associates. Furthermore, Weiner & Silver-man are not entitled to any compensation from the estate even were they debtor’s authorized attorney. An attorney for a debtor is entitled to be compensated from the estate only for services of value to the administration of the estate or of benefit to the estate. In re Evenod Perfumer, 67 F.2d 878, 879 (2d Cir.1933), cert. denied, 291 U.S. 671, 54 S.Ct. 455, 78 L.Ed. 1060 (1934); 2 Collier on Bankruptcy, Par. 330.04[3] at p. 330-18 (15 Ed.1985). The file shows that the administration of the estate came to a conclusion for all practical purposes well before the time that Silver-man left Horwitz & Associates. Furthermore, none of the services alluded to in the time sheets submitted in support of the application of Weiner &" }, { "docid": "20274689", "title": "", "text": "forth second priority for administrative expenses allowed under section 503(b). Ibid. Thus, section 503(b)(2) provides: (b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including— (2) compensation and reimbursement awarded under section 330(a) of this title[.] 11 U.S.C. § 503(b)(2). Section 507(a)(2) then provides: (a) The following expenses and claims have priority in the following order: (2) Second, administrative expenses allowed under section 503(b) of this title, and any fees and charges assessed against the estate under chapter 123 of title 28. 11 U.S.C. § 507(a)(2) (2006). In a Chapter 13 case, section 330(a)(4)(B) provides that the court may allow reasonable compensation to the debt- or’s attorney for representing the interests of the debtor in connection with the bankruptcy case. 11 U.S.C. § 330(a)(4)(B); see also In re Met-L-Wood Corp., 103 B.R. 972, 975 (Bankr.N.D.Ill.1989). In addition, section 331, in conjunction with Bankruptcy Rule 2016, allows any professional person employed pursuant to § 327 or § 1103 of the Code, to apply to the court for interim compensation and reimbursement. In re Met-L-Wood Corp., 103 B.R. at 975-76 (citing 11 U.S.C. § 331), Moreover, the allowance of a claim for reasonable compensation to the debtor’s attorney is an administrative expense, entitled to priority distribution under 11 U.S.C. § 507. See id. at 976. To determine whether to approve an interim compensation application, the court must weigh important competing interests. Ibid. For instance, the primary policy behind the awarding of interim compensation under § 331 is to relieve attorneys from the burden of financing lengthy and complex bankruptcy proceedings. Ibid, (citing In re UNR Indus., Inc., 72 B.R. 796, 798-99 (Bankr.N.D.Ill.1987) (Chapter 11)). On the other hand, the court must also weigh the interests of preserving the estate and protecting its various classes of creditors. Ibid, (citing In re Tri-County Water Ass’n, Inc., 91 B.R. 547, 549 (Bankr.D.S.D.1988)). It is well-settled that a debtor’s attorney is not entitled to compensation from the estate unless his services benefitted the estate. Ibid, (citing In re Ryan, 82 B.R. 929 (N.D.Ill.1987))." }, { "docid": "4704187", "title": "", "text": "state receivership period are: the Receiver and his attorney, Mr. Weisman; Hilo Construction, Inc.; Krist Ann Advertising; DLIR and the State Department of Taxation. Each of these claimants seeks reimbursement against the bankrupt estate out of proceeds from the sale of ERS for compensation and/or expenses of the superseded receivership. The principles governing the propriety and amount of allowances for pre-bank-ruptcy expenses are generally derived from the landmark case of Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165 (1903). The doctrine of Randolph v. Scruggs has been referred to as the “benefit” doctrine and may be summarized as follows: Any real services either of an assignee under a deed of assignment or of a receiver acting under judicial authority will be allowed as a preferred claim in the administration of the property and the distribution of its proceeds to the extent that the services have benefited the estate. Hume v. Myers, 242 F. 827, 830 (4th Cir. 1917). See also, Chase Bag Co. v. Schouman, 129 F.2d 247 (6th Cir. 1942); Paine v. Archer, 233 F. 259 (9th Cir. 1916); and In re Garrett Road Corp., 256 F.Supp. 709, 713 (E.D.Pa.1966). In Randolph the Supreme Court stated the principle that costs of a superseded assignment for the benefit of creditors , including attorney’s fees for representation of the assignee, were entitled to first payment out of the bankrupt estate as an equitable lien. This equitable lien would be imposed provided that the costs were beneficial and tended to preserve the assets. The Court reasoned that reimbursement and/or allowances were due not as costs of administration or provable claims, but based on the theory that the assignee was entitled to deduct the expenses before being required to surrender the balance of the assets to the bankruptcy court. Thus, if the receiver turned over all the assets, the deductible expenses should be reimbursed to him. Applying the principles of the Randolph case, from the record it is clear that Krist Ann Advertising, Hilo Construction, and the hotel employees provided services which were beneficial and tended to preserve the" }, { "docid": "4704186", "title": "", "text": "represented by attorney Weisman, seeks compensation for services rendered and monies advanced for the operation and maintenance of the Orchid Island Hotel. Mr. Weisman, the attorney for Wong, seeks compensation for services rendered during the administration of Orchid Island Hotel in the State Court prior to the bankruptcy proceeding, as well as during the present bankruptcy proceedings. F.Attorney for Bankrupt The attorney for the Bankrupt is seeking reasonable attorneys’ fees of $7,220.00 as an administrative claim for services rendered after the petition in bankruptcy was filed. II. Discussion In determining whether each particular claim has priority over ERS, a distinction must be made between pre-petition and post-petition claims. The following priority analysis will be divided first, into a discussion of the pre-petition claims, and next, the post-petition claims against ERS. These claims will be treated separately because different issues arise in determining the priority of distribution of the proceeds from the sale of the hotel. A. Pre-petition Expenses Included among the various creditors asserting claims ahead of ERS for debts which were incurred during the state receivership period are: the Receiver and his attorney, Mr. Weisman; Hilo Construction, Inc.; Krist Ann Advertising; DLIR and the State Department of Taxation. Each of these claimants seeks reimbursement against the bankrupt estate out of proceeds from the sale of ERS for compensation and/or expenses of the superseded receivership. The principles governing the propriety and amount of allowances for pre-bank-ruptcy expenses are generally derived from the landmark case of Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165 (1903). The doctrine of Randolph v. Scruggs has been referred to as the “benefit” doctrine and may be summarized as follows: Any real services either of an assignee under a deed of assignment or of a receiver acting under judicial authority will be allowed as a preferred claim in the administration of the property and the distribution of its proceeds to the extent that the services have benefited the estate. Hume v. Myers, 242 F. 827, 830 (4th Cir. 1917). See also, Chase Bag Co. v. Schouman, 129 F.2d 247 (6th Cir. 1942);" }, { "docid": "22209543", "title": "", "text": "41 B.R. 565, 574, Bankr.L.Rep. (CCH) ¶ 69,913 (Bkrtcy.E.D.N.Y.1984); In re Calumet Realty Co., 34 B.R. 922, 11 B.C.D. 361, Bankr.L.Rep. (CCH) ¶ 69,489 (Bkrtcy.E.D.Pa.1983); In re J.V. Knitting Services, Inc., 22 B.R. 543, 545 (Bkrtcy.S.D.Fla.1982); In re Richton International Corp., 15 B.R. 854, Bankr.L.Rep. (CCH) 1168,489, 5 C.B.C.2d 1019 (Bkrtcy.S.D.N.Y.1981). W. Norton, 1 NORTON BANKRUPTCY LAW AND PRACTICE § 12.32, at pt.12 — pg.49 (1981); 3 COLLIER ON BANKRUPTCY 11503.04, at 503-38 (15th ed.1984). The professional services of Teitelbaum & Gamberg were rendered on behalf of a committee of creditors attempting to fashion a nonbankruptcy workout. The committee was obviously unsuccessful in its endeavor. Moreover, this applicant is unable to point to. any direct benefit to the debtor's estate arising out of the prepetition services. It is the opinion of this Court that participation in negotiating a nonbankruptcy workout will not give rise to a claim for compensation from the estate. This is a service for which attorneys must ordinarily look to their own clients for payment. (2) The “Equitable Benefit” Doctrine. If a bankruptcy case supersedes a general assignment for the benefit of creditors or a receivership the Bankruptcy Code permits expenses incurred in those proceedings to enjoy an administrative priority. See 11 U.S.C. § 503(b)(3)(E); 11 U.S.C. § 543(c)(2). In their joint statement, the floor managers explained that “[section 503(b)(3)(E) codifies present law in cases such as Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165, which accords administrative expense status to services rendered by a prepetition custodian or other party to the extent such services actually benefit the estate.” 124 Cong. Rec. H11095 (daily ed. Sept. 29, 1978) (remarks of Representative Edwards); 124 Cong.Rec. S17411 (daily ed. Oct. 6, 1978) (remarks of Senator DeConcini). (Emphasis added). It is argued, with some cogency, that this provision authorizes the bankruptcy court to make an allowance of pre-petition attorneys’ fees incurred on behalf of the unofficial creditors’ committee as an administrative expense. It is therefore not surprising that one bankruptcy court has interpreted the words “or other party” in the statement of the floor managers to" }, { "docid": "20917761", "title": "", "text": "paying for the Debtors’ conversion of non-exempt property into exempt property would fall squarely on the shoulders of the creditors. Other courts have considered this policy argument and rejected it. One court stated that the basic principle, that services compensated from property of the estate must benefit the estate, in fact “furthers the ‘fresh start’ objective of the Bankruptcy Code ‘while not putting the full burden of the debtor’s legal expenses on the estate and, consequently, the creditors.’ ” In re Leff, 88 B.R. 105, 109 (Bankr.N.D.Tex.1988) (citing In re Hunt, 59 B.R. 842, 843-44 (Bankr.N.D.Ohio 1986) (quoting In re Zweig, 35 B.R. 37, 38 (Bankr.N.D.Ga.1983))). The Deihl court failed to consider that in order for a debtor’s attorney to be entitled to compensation from the estate that the services must be rendered in aid of the administration of the estate. The legislative history for the Code clearly reflects a congressional intent not to compensate an attorney from the estate for all actions taken by the attorney. “Section 503(b)(3)(E) codifies present law in cases such as Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165 (1903) which accords administrative expense status to services rendered by a pre-petition custodian or other party to the extent such services actually benefit the estate.” 124 Cong. Ree. H 11094-95 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards); S 17411 (daily ed., Oct. 6, 1978) (remarks of Sen. DeConci-ni). The majority of authority clearly supports the proposition that reasonable necessary services means services that benefit the Debtors’ estate, not the Debtor personally. The services in question provided by Debtors’ Counsel include resisting an objection to exemptions. Debtors’ Counsel asserts that he is entitled to compensation from the estate because his services benefited the estate. Specifically, Debtors’ Counsel contends that “[b]ut for the day in trial and the subsequent negotiations, this estate ... would not have received the $10,000 settlement ultimately agreed upon.” Brief re: Payment of Debtors’ Attorney Fees, pp. 7-8. However, but for the Debtors’ questionable pre-petition actions, which personally benefited the Debtors, the extensive negotiations could have been avoided." }, { "docid": "22209602", "title": "", "text": "In re Penn-Dixie Industries, Inc., 18 B.R. 834, 838-39, 8 B.C.D. 1134 (Bkrtcy. S.D.N.Y.1982); 1 W. Norton, NORTON BANKRUPTCY LAW AND PRACTICE § 13.30, at pt. 13- p. 53 (1981); Butenas, “Establishing Attorney’s Fees Under the New Bankruptcy Code, 37 The Bus.Law. 77, 79 (1981). The Supreme Court, in Hensley v. Eckerhart, supra, instructed courts to start by multiplying the hours reasonably spent by a reasonable hourly rate, and then, where appropriate, to apply the Johnson factors to increase or decrease this “initial estimate.” Id., 103 S.Ct. at 1939. It is necessary to expand briefly on the question of the “result” factor in fixing allowances of professional compensation. The standard governing allowance of fees under the former Bankruptcy Act and related Rules of Bankruptcy Procedure, which emphasized conservation of the estate and economy of administration, was replaced with one designed to be generous enough to attract professional persons of the highest ability to the practice of bankruptcy law. See COLLIER ON BANKRUPTCY II 330.02, at 330-4 (15th ed. 1984). Congress substituted “reasonableness” and “actual” and “necessary” for “benefits conferred” as the test for fee allowances under the Code. Hours may be reasonably and necessarily spent and, therefore, be compensable under Section 330 even though the effort did not result in a benefit to the estate. See In re Casco Bay Lines, supra, 25 B.R. at 756; In re Grist, supra note 6 at 6-7). Cf. 11 U.S.C. § 503(b) (explicitly requiring “substantial contribution” in order to be compensable). In this Court’s view, a result-based analysis of fee requests under Sections 330 and 331 should be applied primarily in cases in which a “bonus” or “premium” fee is sought for extraordinary results. See In re Casco Bay Lines, Inc., supra, 25 B.R. at 747; Matter of Aminex Corporation, 15 B.R. 356, 362, 5 C.B.C.2d 155 (Bkrtcy.S.D.N.Y.1981); In re Warrior Drilling & Engineering Co., Inc., 9 B.R. 841, 7 B.C.D. 618 (Bkrtcy.N.D.Ala.), modified, 18 B.R. 684, 8 B.C.D. 781 (N.D.Ala.1981). Cf. Hensley v. Eckerhart, supra, 461 U.S. at 424 (“excel lent results” warrants a “fully compensatory fee” ’ and an “enhanced award”" }, { "docid": "2107536", "title": "", "text": "with the prosecution of a criminal offense relating to the case or to the business or property of the debtor; (D) a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under section 1102 of this title, in making a substantial contribution in a case under chapter 9 or 11 of this title; or (E) a custodian superseded under section 543 of this title, and compensation for the services of such custodian; (4) reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expense is allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such attorney or accountant; This language permits the court to allow as administrative expenses certain qualifying pre-petition expenses. The principal test is whether the services were a benefit to the debtor’s estate. As the court in In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 569 (Bkrtcy.1985) stated: The appropriate test under Section 503(b) is whether the services substantially contributed to a successful result, that is, an actual and demonstrable benefit to the debtor’s estate, the creditors, and, to the extent relevant, the stockholders, (citations omitted). 11 U.S.C. Section 503(b)3(E) was intended to codify the “Equitable Benefit” Doctrine of Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165 (1903). In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 570-571 (Bkrtcy.1985), the court stated: The equitable benefit doctrine of Randolph v. Scruggs permitted assignees and others, usually receivers, to receive such prepetition expenses as were reasonably incurred in the care and preservation of assets, which inured to the benefit of the bankruptcy estate, (citations omitted). The following prepetition expenses were accorded an administrative priority as tending to preserve and benefit the bankruptcy estate: (1) appraiser’s fees; (2) fire insurance premium; (3) repairs, insurance, and taxes paid by the assign-ee; (4) reimbursement of bills" }, { "docid": "8320606", "title": "", "text": "Section 330 provides that [ajfter notice to any parties in interest ... and a hearing, ... the court may award ... to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered ... based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. The issue before the Court is whether services rendered have to benefit the estate in some way in order for the debtor’s attorney to be entitled to be compensated out of the funds of the estate. First, the Court notes that it is generally held that the Code follows the Act and its case law, with the exception of the amount of rate to be paid. See, e.g., In re Penn-Dixie Industries, Inc., 18 B.R. 834 (Bkrtcy.S.D.N.Y.1982); In re Underground Utilities Constr. Co., 13 B.R. 735 (Bkrtcy.S.D.Fla.1981); 2 Collier on Bankruptcy ¶ 330.04 (15th ed. 1983). The Code rejects the Act’s conservative approach to attorneys’ fees. Instead, the Code is clear that bankruptcy attorneys should be paid at the same rate as attorneys in comparable fields. 11 U.S.C. § 330; Notes on Committee on the Judiciary, House Report No. 95-595 at 330, U.S. Code Cong. & Admin.News 1978, 5787. However, as to the question of what fees are compensable out of the estate, case law under the Bankruptcy Act is still viable authority. Under the Act, there was a split in authority as to whether, in order to be eligible to be paid out of funds of the estate, the work for which the fees were assessed must have produced some benefit to the estate. One line of cases held that fees would not be awarded to the extent that the services were in essence a benefit to the debtor rather than to the estate. See, e.g., In re Jones, 665 F.2d 60 (5th Cir.1982); Soteres v. Scroggins (In re Orbit Liquor Store), 439 F.2d 1351 (5th Cir.1971); Trauner v. Lipshutz (In re Breus), 4 B.C.P. 1029, (Bkrtcy.N.D.Ga.1978). Another line of" }, { "docid": "18561908", "title": "", "text": "partnership” to share compensation with other members, partners or associates. It thus makes crystal clear that there cannot be any sharing based on the employment as counsel of a second firm. No compensation can be awarded Weiner & Silverman in the name of Horwitz & Associates. Furthermore, Weiner & Silver-man are not entitled to any compensation from the estate even were they debtor’s authorized attorney. An attorney for a debtor is entitled to be compensated from the estate only for services of value to the administration of the estate or of benefit to the estate. In re Evenod Perfumer, 67 F.2d 878, 879 (2d Cir.1933), cert. denied, 291 U.S. 671, 54 S.Ct. 455, 78 L.Ed. 1060 (1934); 2 Collier on Bankruptcy, Par. 330.04[3] at p. 330-18 (15 Ed.1985). The file shows that the administration of the estate came to a conclusion for all practical purposes well before the time that Silver-man left Horwitz & Associates. Furthermore, none of the services alluded to in the time sheets submitted in support of the application of Weiner & Silverman reflect anything of benefit to the estate. Most of the services were in opposition to the estate and had as their purpose the preservation to Mallozzi of his claim against the estate. The services rendered by Horwitz & Associates prior to September 6, 1983 may arguably have been of benefit to the administration of the estate. The total hours claimed for such services are 8.5, which were adequately compensated by the $750.00 previously paid Horwitz & Associates. Finally, what the Court considers decisive, is that were it to allow the claim of Weiner & Silverman, it would reduce the excess over the amount needed to pay creditors. According to the stipulation any excess was to be divided equally between Pena and Mallozzi. Using the estate to pay Mallozzi’s attorney would reduce the amount available to Pena. Part of Pena’s half of the excess would thus go to pay Mallozzi’s attorney. For all the foregoing reasons: because Weiner & Silverman were never authorized to represent the debtor; because there can be no sharing of compensation" }, { "docid": "10213735", "title": "", "text": "“Section 503(b)(3)(E) codifies present law in cases such as Randolph v. Scruggs, 190 U.S. 533, [23 S.Ct. 710, 47 L.Ed. 1165] which accords administrative expense status to services rendered by a prepetition custodian or other party to the extent such services actually benefit the estate. (124 Cong.Rec. H 11,094-5 (Sept. 28, 1978); S 17,411 (Oct. 6,1978).” (emphasis added). The 1898 Bankruptcy Act made no specific provision for payments as items of administrative expense with respect to any activity prior to the petition initiating the case. However, as early as Randolph v. Scruggs decided shortly after the inception of the modern Bankruptcy Act, the Supreme Court determined that pre-petition activities which directly benefited or tended to preserve the estate of the debtor could claim entitlement to treatment as expense of administration. That case has been recognized and applied in this Court frequently over the course of time. In view of the clear expression of the Code’s managers of an intention to preserve the basis of Randolph v. Scruggs as an expressed and integral part of the Bankruptcy Code it relegates entitlement for pre-petition services simply to a consideration of the matter of benefit conferred on the estate. As related in the memorandum submitted by Mr. Patrick, and undisputed on hearing, the informal creditors’ committee was engaged in the beginning of a continuous process which eventuated in the acceptance of a plan of reorganization beneficial to the general creditors. I see no reason to distinguish on the facts known to the Court between the beneficial results of the pre-petition activity as opposed to the post-petition activity of the committee which is admittedly compensable. Given such benefit conferred, Section 503(b)(4) forms the statutory predicate for the reimbursement of reasonable compensation for its employed attorney based on the nature, extent, and value of the services as well as the cost of comparable services as well as reimbursement for necessary expenses incurred. The test accordingly is the same as with respect to any other application of a professional person. The original application sought allowance of a total of $28,441.50 and reimbursement of expenses incurred. It" }, { "docid": "2524407", "title": "", "text": "Under the Act, specific allowance for compensation of the debtor’s attorney as a cost chargeable to the estate was found in former section 64(a)(1). Under that section, the debtor’s attorney must have rendered services “in aid of the administration of the estate” to be entitled to compensation from the estate. See 4 Collier on Bankruptcy p 330.04[3] (L. King 15th ed. 1986). The equivalent code provision, 11 U.S.C. § 503(b) provides that claims for compensation awarded under section 330(a) will be allowed as an administrative expense. Thus, “services of a debtor’s attorney which were compensable under the Act, should be entitled to compensation under section 330.” See 4 Collier on Bankruptcy p 330.04[3] (L. King 15th ed. 1986); In re Epstein, 39 B.R. 938, 940 (Bankr.D.N.M.1984). The First Circuit has not ruled on this issue. However, District Court Judge Conrad Cyr, when he was a Bankruptcy Judge ruled, in 1975, that a debtor’s attorney could be compensated for services rendered in defense of the dischargeability of individual debts. In re Gray, 7 C.B.C. 571 (Bankr.D.Me.1975). Judge Cyr relied on a 1933 United States Supreme Court decision, Conrad, Rubin, & Lesser v. Pender, 289 U.S. 472, 53 S.Ct. 703, 77 L.Ed. 1327 (1933). In re Gray, 7 C.B.C. at 579. The Conrad Court, noted Cyr, observed that the legal services within section 64 “are those rendered in aid of the administration of the estate and the carrying out the provisions of the Act.” Id. (citing Conrad, 289 U.S. It 476, 53 S.Ct. at 704.) After discussing the authority relied upon in Conrad, the court determined that “carrying out the provisions of the Act” included those proceedings which “provide for a ‘fresh start’ for deserving debtors by means of a decree of discharge relieving them of unmanageable indebtedness.” Id. at 583 (citing In re Christianson, 175 F. 867, 868 (D.N.D.1910)). The court reasoned that it would be inequitable for courts to allow debtors to initiate voluntary bankruptcy proceedings and surrender their assets in anticipation of discharge relief, only to be denied effective relief because they lack necessary legal counsel with which to" }, { "docid": "10213734", "title": "", "text": "that there is no provision in the Code for the payment of attorneys’ fees to attorneys for pre-petition unofficial creditors’ committees. Section 503 of the Code provides that after notice and hearing, there may be allowed: “(b) After notice and a hearing, there shall be allowed, administrative expenses, other than claims allowed under section 502(f) of this title, including — ” ****** “(3) the actual, necessary expenses, other than compensation and reimbursement specified in paragraph (4) of this subsection, incurred by — ” ****** “(D) a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under section 1102 of this title, in making a substantial contribution in a case under chapter 9 or 11 of this title; or” Subpart (D) might be permissibly read as referring only to those committees representing creditors active after the commencement of the bankruptcy case. It is clear however that the managers of the legislation did not intend such a restriction. In their joint statement, they indicated: “Section 503(b)(3)(E) codifies present law in cases such as Randolph v. Scruggs, 190 U.S. 533, [23 S.Ct. 710, 47 L.Ed. 1165] which accords administrative expense status to services rendered by a prepetition custodian or other party to the extent such services actually benefit the estate. (124 Cong.Rec. H 11,094-5 (Sept. 28, 1978); S 17,411 (Oct. 6,1978).” (emphasis added). The 1898 Bankruptcy Act made no specific provision for payments as items of administrative expense with respect to any activity prior to the petition initiating the case. However, as early as Randolph v. Scruggs decided shortly after the inception of the modern Bankruptcy Act, the Supreme Court determined that pre-petition activities which directly benefited or tended to preserve the estate of the debtor could claim entitlement to treatment as expense of administration. That case has been recognized and applied in this Court frequently over the course of time. In view of the clear expression of the Code’s managers of an intention to preserve the basis of Randolph v. Scruggs as an expressed and integral part of the" }, { "docid": "8320605", "title": "", "text": "MEMORANDUM OF OPINION AND ORDER A. DAVID KAHN, Bankruptcy Judge. The above-styled bankruptcy proceeding is before the Court on the Debtor’s attorney’s application for interim compensation and reimbursement of expenses. Attorneys for the Debtor seek $2,057.50 in fees and expenses to be paid out of funds of the estate. The Trustee has objected to the payment of these fees and expenses out of the funds of the estate on the ground that much of the time for which compensation is sought “was for the personal benefit of the Debtor, and the estate should not compensate Attorney for the Debtor for time spent solely for the benefit of the Debtor.” Trustee’s Objection to Application for Interim Compensation and Reimbursement of Expenses of Counsel for Debtor. A hearing was held on July 20,1983 at which time the Court heard arguments of counsel. The matter was then taken under advisement. 11 U.S.C. § 331 provides that a debtor’s attorney “may apply to the court ... for such compensation ... as is provided under section 330 of this title.” Section 330 provides that [ajfter notice to any parties in interest ... and a hearing, ... the court may award ... to the debtor’s attorney— (1) reasonable compensation for actual, necessary services rendered ... based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. The issue before the Court is whether services rendered have to benefit the estate in some way in order for the debtor’s attorney to be entitled to be compensated out of the funds of the estate. First, the Court notes that it is generally held that the Code follows the Act and its case law, with the exception of the amount of rate to be paid. See, e.g., In re Penn-Dixie Industries, Inc., 18 B.R. 834 (Bkrtcy.S.D.N.Y.1982); In re Underground Utilities Constr. Co., 13 B.R. 735 (Bkrtcy.S.D.Fla.1981); 2 Collier on Bankruptcy ¶ 330.04 (15th ed. 1983). The Code rejects the Act’s conservative approach to attorneys’ fees." }, { "docid": "15783291", "title": "", "text": "to have priority, except as herein provided, and to be paid in full out of bankrupt estates, and the order of payment shall be * * * (3) the cost of administration, * * * and one reasonable attorney’s fee, for the professional services actually rendered, irrespective of the number of attorneys employed, to the petitioning creditors in involuntary cases, to the bankrupt in involuntary cases while performing the duties herein prescribed, and to'the bankrupt in voluntary cases, as the court may allow.” (Italics added.) In the application of this provision, since its enactment, certain definite criteria have been evolved for determining the work for which the allowance should be made and its basis. Because some of the work for which fees are asked involves services in conjunction with certain involuntary proceedings and the present proceeding is a voluntary one, we shall, for the sake of clarity, state the principles relating to allowances in involuntary and voluntary cases separately. The only services for which fees may be allowed in involuntary cases “are those rendered in aid of the administration of the estate and the carrying out of the provisions of the act.” Conrad, Rubin & Lesser v. Pender (1933) 289 U.S. 472, at page 476, 53 S.Ct. 703, 704, 77 L.Ed. 1327. Only those services are considered as being in aid of the administration of the estate which result in the benefit of it. Randolph v. Scruggs (1903) 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165; In re Evenod Perfumer, Inc. (D.C.N.Y.1933) 4 F.Supp. 916; In re Evenod Perfumer (C.C.A.2, 1933) 67 F.(2d) 878; In re Rothman et al. (D.C.N.Y.1936) 14 F.Supp. 241; In re Rothman et al., Glazer et al. v. Joliffe (C.C.A. 2, 1936), 85 F.(2d) 51. Prior to its amendment in 1926, this section specified that in involuntary cases, the allowance of attorney’s fees to the bankrupt was to be for services rendered “while performing the duties” prescribed in the act. Bankr.Act, § 62b (3), 11 U.S. C.A. § 104(b) (3). It was then held that the duties referred to were those imposed upon the bankrupt" }, { "docid": "2107537", "title": "", "text": "to the debtor’s estate. As the court in In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 569 (Bkrtcy.1985) stated: The appropriate test under Section 503(b) is whether the services substantially contributed to a successful result, that is, an actual and demonstrable benefit to the debtor’s estate, the creditors, and, to the extent relevant, the stockholders, (citations omitted). 11 U.S.C. Section 503(b)3(E) was intended to codify the “Equitable Benefit” Doctrine of Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165 (1903). In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 570-571 (Bkrtcy.1985), the court stated: The equitable benefit doctrine of Randolph v. Scruggs permitted assignees and others, usually receivers, to receive such prepetition expenses as were reasonably incurred in the care and preservation of assets, which inured to the benefit of the bankruptcy estate, (citations omitted). The following prepetition expenses were accorded an administrative priority as tending to preserve and benefit the bankruptcy estate: (1) appraiser’s fees; (2) fire insurance premium; (3) repairs, insurance, and taxes paid by the assign-ee; (4) reimbursement of bills incurred by an assignee for electric lights; (5) assignee’s expenses of operating the debtor’s business; (6) premium on the assignee’s bond; (7) assignee’s expenses of taking an inventory and recovering possession of and protecting assets after having been forcibly dispossessed by the debtor; (8) assignee’s expenses incurred in adjusting a fire insurance claim for destruction of property of the debtor; and (9) warehouse storage expenses incurred by a sheriff pursuant to a prepetition levy in an attachment proceeding, which preserved the debtor’s property for the benefit of creditors, (footnotes omitted). In every case in which prepetition expenses were allowed, a demonstrable benefit to the estate was shown. The benefit was required to be substantial and courts carefully scrutinized such requests. See Bass v. Quittner, Stutman & Treister, 381 F.2d 54, 59 (9th Cir.1967). It should be borne in mind that the Supreme Court clearly stated in Randolph v. Scruggs that “[w]e are not prepared to go further than to allow compensation for services which were beneficial to the estate.” 199 U.S. at 539, 23 S.Ct." }, { "docid": "20917756", "title": "", "text": "award or decline to award attorney fees. Read literally, § 330 could support an argument that Debtors’ Counsel may be entitled to reasonable fees if his services were actual and necessary. Courts do not read this section literally, however. See, e.g., Matter of Ryan, 82 B.R. 929, 931-32 (N.D.Ill.1987). In Ryan, an attorney for a Chapter 7 debtor sought payment of fees for time spent defending the debtor from dischargeability complaints. The court concluded that the services performed by the attorney benefited the debtor personally and not the estate. In its discussion, the Ryan court stated: So far as we are aware, no court has chosen to read 11 U.S.C. § 330 literally since its enactment in the 1978 Bankruptcy Reform Act (“Bankruptcy Code”). Instead, all the decisions interpreting § 330 of the Bankruptcy Code carry over the near-unanimous view of prior Bankruptcy Act cases that, as a matter of law, attorneys may recover fees from the estate only if their labors actually benefited the estate. Ryan, 82 B.R. at 931 (citations omitted). Many courts have ruled that attorney’s fees incurred while defending actions that do not benefit the estate are not payable from the estate. For example, the United States Supreme Court stated: We are not prepared to go further than to allow compensation for services which were beneficial to the estate. Beyond that point we must throw the risk of his conduct on the assignee, as he was chargeable with knowledge of what might happen. Randolph v. Scruggs, 190 U.S. 533, 539, 23 S.Ct. 710, 713, 47 L.Ed. 1165 (1903). The Court subsequently rejected the possibility that representation in resistance to an involuntary petition may be beneficial to the estate: “No ground appears for allowing the item for services in resisting an adjudication of bankruptcy.” Id. Most other courts also follow this approach. See, e.g., Matter of Jones, 665 F.2d 60 (5th Cir.1982) (Attorney for the debtor is not entitled to compensation out of the bankrupt estate for services rendered in defeating opposition to discharge filed by creditors); In re Walter, 83 B.R. 14, 19 (9th Cir. BAP" } ]

[ { "docid": "2421898", "title": "", "text": "government and the defendant, not between the defendant and the United States’ particular legal representative. In authorizing private prosecutorial action on the government's behalf in the False Claims Act and the other statutes mentioned above, Congress is making a policy decision based on its perception of how best to serve the public interest. By adjudicating these statutory claims, the judicial branch is in essence implementing this legislative definition of the public interest. Recognition of “citizen” standing involves, by contrast, the development of causes of action for plaintiffs in consideration of what, in the courts’ opinion, would best advance the public interest. While there may be differing points of view as to whether the court has engaged in policy-making in a particular case, it is certainly clear that the policymaking function is not assigned to the judicial branch. See Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). The requirement that citizen plaintiffs demonstrate injury in fact may thus be viewed as doctrine designed to preclude the judiciary from exercising what are essentially executive and legislative functions. In the instant case, the judicial branch is not called upon to create causes of actions or make any policy determinations. There is a concrete, identifiable claim for fraud against the government the prosecution of which Congress, pursuant to its policymak-ing authority, has placed under the direction of the qui tam relator. As the court need only enforce the policy under the congressionally defined substantive law, it is unnecessary to require that the relator demonstrate injury in fact to comply with Article III. Accordingly, and in sum, Northrop’s contention that the qui tam plaintiffs lack standing to bring the instant action is without merit. III. Separation of Powers Even if the amended False Claims Act satisfies Article III, Northrop contends that it violates the doctrine of separation of powers by unconstitutionally undermining the authority of the executive branch. The Court does not agree. A. General Principles The separation of powers doctrine does not require a “hermetic division” between the branches but is intended instead to achieve a" } ]

[ { "docid": "22935532", "title": "", "text": "FCA’s qui tam provisions run afoul of Article III and are unconstitutional. We disagree and hold that the FCA effectively assigns the government’s claims to qui tam plaintiffs such as Kelly, who then may sue based upon an injury to the federal treasury. Under this theory of standing, the FCA’s qui tam provisions operate as an enforceable unilateral contract. The terms and conditions of the contract are accepted by the relator upon filing suit. If the government declines to prosecute the alleged wrongdoer, the qui tam plaintiff effectively stands in the shoes of the government. Because the government clearly is capable of establishing injury-in-fact, causation, and redressability, qui tam plaintiffs satisfy these Article III requirements as well. Several courts and commentators have embraced this assignment theory. See United States ex rel. Kreindler & Kreindler v. United Technologies Corporation, 985 F.2d 1148 (2d Cir.), cert. denied, — U.S. —, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993); United States Dept. of Housing and Urban Develop. ex rel. Givler v. Smith, 775 F.Supp. 172, 180-81 (E.D.Pa.1991); Truong v. Northrop Corporation, 728 F.Supp. 615, 618-620 (C.D.Cal.1989); Thomas R. Lee, Comment, The Standing of Qui Tam Relators Under the False Claims Act, 57 U.Chi.L.Rev. 543, 563-70 (1990). Moreover, this theory comports with federal practice. Federal courts routinely find that fraud claims are assignable. See AmeriFirst Bank v. Bomar, 757 F.Supp. 1365, 1370-71 (S.D.Fla.1991) (10b-5 claims assignable); Federal Deposit Ins. Corp. v. Main Hurdman, 655 F.Supp. 259, 266-68 (E.D.Cal.1987) (bank’s actions for fraud and malpractice assignable to FDIC); In re National Mortg. Equity Corp., 636 F.Supp. 1138, 1152-56 (C.D.Cal.1986) (RICO treble damage claims assignable). In addition, federal courts consistently recognize that an assignee of a fraud claim can assert his claim despite being unable to satisfy traditional standing requirements. AmeriFirst Bank, 757 F.Supp. at 1370; Main Hurdman, 655 F.Supp. at 267. See also National Ass’n of Realtors v. Nat. Real Est. Ass’n., 894 F.2d 937, 941 (7th Cir.1990). Boeing and amici curiae argue that it strains reason to suggest that Congress was attempting to make a legal assignment through the FCA. They emphasize that the word" }, { "docid": "7808641", "title": "", "text": "showing of good cause.” 31 U.S.C. § 3730(c)(3). In summary, the structure of the qui tam procedure, the extensive benefit flowing to the government from any recovery, and the extensive power the government has to control the litigation weigh heavily against the Center’s position. C. The history and purpose of qui tam suits is likewise unsupportive of the Center. Statutes authorizing qui tam suits are older than the Republic. Marvin v. Trout, 199 U.S. 212, 225, 26 S.Ct. 31, 34, 50 L.Ed. 157 (1905) (discussing long history of practice). A qui tam relator is essentially a self-appointed private attorney general, and his recovery is analogous to a lawyer’s contingent fee. The relator has no personal stake in the damages sought — all of which, by definition, were suffered by the government. Id. (relator “ha[s] no interest whatever in the controversy other than that given by statute”). The government, and not the relator, must have suffered the “injury in fact” required for Article III standing. United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456 (5th Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978); United States ex rel. Truong v. Northrop Corp., 728 F.Supp. 615, 616-620 (C.D.Cal.1989); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 722 F.Supp. 607, 614-615 (N.D.Cal.1989). We could not lightly conclude that the party upon whose standing the justiciability of the case depends is not the real party in interest. Congress chose, as a means to encourage citizens to come forward with knowledge of frauds against the government, to give economic incentives to a qui tam plaintiff. In addition, it gave the Executive Branch the option to allocate its resources elsewhere and permit the relator to prosecute the action on its behalf. Through this procedure, Congress could reasonably have envisioned that more fraud would be discovered, more litigation could be maintained, and more funds would flow back into the Treasury. On the other hand, perhaps Congress should have taken note of the possibility that states would be harassed by vexatious qui tam suits in federal courts. Perhaps it" }, { "docid": "11018092", "title": "", "text": "457, 12 S.Ct. 511, 36 L.Ed. 226 (1892) (seminal case adopting this canon of statutory construction). In 31 U.S.C. § 3731, Congress provided a statute of limitations for qui tam actions: [a] civil action under section 3730 may not be brought — (1) more than 6 years after the date on which violations of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action or known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed. (emphasis added). Mr. Grand has brought his retaliation claim under 31 U.S.C. § 3730(h). Because a retaliation claim is part of § 3730, the plain language of 31 U.S.C. § 3731 expressly provides, a statute of limitations for allegations of retaliation. Defendant Northrop contends, however, that the statute of limitations set forth in 31 U.S.C. § 3731 is not applicable to a wrongful discharge claim under 31 U.S.C. § 3730(h). Northrop points to the language “... on which the violation of section 3729 is committed____” Based upon this language, Northrop concludes that the six year statute of limitations only applies to fraud violations under 31 U.S.C. § 3729. We are unpersuaded by Northop’s argument. The statute of limitations begins with “[a] civil action under § 3730 — .” Congress did not specify parts or subsections of § 3730 which had a different statute of limitations. Based upon the plain language of the statute, we can only infer that Congress intended all parts of 31 U.S.C. § 3730 to have the same statute of limitations. Finally, we note that a relator’s qui tam claim is often interrelated to his claim for retaliation. See generally, United States, ex rel. Barbara Burch v. Piqua Engineering, Inc., 803 F.Supp. 115, 119 (S.D.Ohio 1992) (J. Spiegel) (noting that qui tam plaintiffs have standing because of the potential ramifications to their employment status by initiating an action under the FCA). Given" }, { "docid": "22228786", "title": "", "text": "13A Charles A. Wright et al., Federal Practice and Procedure § 3531.13, at 76 (1984) (“if Congress wishes, indeed, it can enact a qui tam statute to enable a private party to invoke the standing of the government to collect a civil penalty”). Thus, the government’s alleged losses from UTC’s fraud confer standing on Kreindler. The government remains the real party in interest, however, in the FCA suit. As we have previously stated, “although qui tam actions allow individual citizens to initiate enforcement against wrongdoers who cause injury to the public at large, the Government remains the real party in interest in any such action.” Minotti v. Lensink, 895 F.2d 100, 104 (2d Cir.1990); see also Milam, 961 F.2d at 49 (“We could not lightly conclude that the party upon whose standing the justiciability of the case depends is not the real party in interest.”). The qui tam plaintiff has the requisite personal stake in the outcome of the case to assure “that concrete adverseness which sharpens the presentation of 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). Because the qui tam relator: (1) funds the prosecution of the FCA suit, (2) will receive a private share in the government’s recovery only upon prevailing, and (3) may be liable for costs if the suit is frivolous, the relator’s personal stake in the case is sufficiently ensured. See United States ex rel. Givler v. Smith, 775 F.Supp. 172, 181 (E.D.Pa.1991); Truong, 728 F.Supp. at 619 n. 7; Stillwell, 714 F.Supp. at 1098-99. UTC argues that such an interpretation permits Congress to circumvent Article III standing requirements. Citing Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), UTC argues that Congress cannot authorize suit by a relator who has not suffered an injury distinct from the harm suffered by all citizens when the government is defrauded. In Valley Forge, however, plaintiffs claimed standing only as taxpayers or citizens. 454 U.S. at 469-70," }, { "docid": "22935531", "title": "", "text": "v. Defenders of Wildlife, — U.S.—,—, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Standing, in turn, is dependent on three conditions. First, the plaintiff must have suffered an “injury in fact.” This consists of an invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent. Second, there must be a causal connection between the injury and the conduct serving as the basis of the lawsuit. In other words, the injury has to be traceable to the challenged action of the defendant and not the result of the conduct of a third party not before the court. Third, it must be likely that the injury will be redressed by a favorable decision. Id. Boeing and amici curiae argue that the only injuries implicated in qui tam suits are injuries to the federal treasury resulting from false claims against the United States. Qui tam relators do not suffer harm, and are therefore unable to establish the constitutional elements of standing. It follows that by granting standing to private parties, the FCA’s qui tam provisions run afoul of Article III and are unconstitutional. We disagree and hold that the FCA effectively assigns the government’s claims to qui tam plaintiffs such as Kelly, who then may sue based upon an injury to the federal treasury. Under this theory of standing, the FCA’s qui tam provisions operate as an enforceable unilateral contract. The terms and conditions of the contract are accepted by the relator upon filing suit. If the government declines to prosecute the alleged wrongdoer, the qui tam plaintiff effectively stands in the shoes of the government. Because the government clearly is capable of establishing injury-in-fact, causation, and redressability, qui tam plaintiffs satisfy these Article III requirements as well. Several courts and commentators have embraced this assignment theory. See United States ex rel. Kreindler & Kreindler v. United Technologies Corporation, 985 F.2d 1148 (2d Cir.), cert. denied, — U.S. —, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993); United States Dept. of Housing and Urban Develop. ex rel. Givler v. Smith, 775 F.Supp. 172, 180-81 (E.D.Pa.1991); Truong v." }, { "docid": "17083598", "title": "", "text": "by the Constitution itself. We note that numerous district courts have upheld the constitutionality of the FCA, but that no Circuit Court of Appeals has yet ruled on this issue. See e.g., United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 777 F.Supp. 195 (N.D.N.Y.1991); Givler, 775 F.Supp. 172; Truong, 728 F.Supp. 615; United States ex rel. Newsham v. Lockheed Missiles & Space Co., 722 F.Supp. 607 (N.D.Cal.1989); United States ex rel. Stillwell v. Hughes Helicopters, Inc., 714 F.Supp. 1084 (C.D.Cal.1989). Despite this adverse precedent for their position, the Defendants make several arguments that the FCA is unconstitutional: (1) no case or controversy exists in FCA actions; (2) the qui tam provisions violate the Appointments Clause; (3) the FCA violates the separation of powers doctrine. We shall examine these contentions in turn, but first we will briefly examine the provisions of the FCA. The False Claims Act Under the FCA, any person who knowingly submits a false claim to the government is liable to the United States for a civil penalty and damages. 31 U.S.C. § 3729. The Act provides that the Attorney General and Department of Justice may enforce the Act. The Act, however, also allows enforcement by private individuals on behalf of the United States. Id. at § 3730(b)(1). Congress designed the FCA to “... encourage private citizens to help the executive branch deter and redress violations of federal law.” Evan Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L.J. 341, 344 (1989). The Act mandates that complaints are filed in camera and remain under seal for at least 60 days. Id. at 3730(b)(2). During this time, the United States government must determine whether to intervene and take primary responsibility for the suit or to decline in its right to intervene, and thus allow a private litigant to continue in the suit. Id. In the matter before the Court, the government declined to intervene and the matter was removed from seal. The qui tarn Plaintiffs, Ms. Burch and others, have continued to prosecute the suit that is now before the Court. Case or Controversy The" }, { "docid": "17083597", "title": "", "text": "1988) (survey-. ing Constitutional law and discussing judicial review). The focus of this Court’s inquiry must be on whether the FCA violates any provision of the Constitution itself. The Plaintiffs make elaborate arguments concerning the age and historical importance of qui tam statutes. The longevity of a statute, however, is not determinative of its Constitutionality. See generally, United States ex rel. Truong v. Northrop, 728 F.Supp. 615, 618 (C.D.Cal.1989) (rejecting historical analysis in considering the constitutional adequacy of standing in qui tam actions). Rather, it demonstrates that the will of the majority, exercised through Congress, has decided not to repeal such a law. Furthermore, the fact that the qui tam provisions may be successful in deterring fraud upon the government is also not at issue. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (the practical problems imposed by invalidating the legislative veto are not determinative in considering its constitutionality). Thus, this Court’s analysis is not driven by its approval or disapproval of the FCA, but rather by the Constitution itself. We note that numerous district courts have upheld the constitutionality of the FCA, but that no Circuit Court of Appeals has yet ruled on this issue. See e.g., United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 777 F.Supp. 195 (N.D.N.Y.1991); Givler, 775 F.Supp. 172; Truong, 728 F.Supp. 615; United States ex rel. Newsham v. Lockheed Missiles & Space Co., 722 F.Supp. 607 (N.D.Cal.1989); United States ex rel. Stillwell v. Hughes Helicopters, Inc., 714 F.Supp. 1084 (C.D.Cal.1989). Despite this adverse precedent for their position, the Defendants make several arguments that the FCA is unconstitutional: (1) no case or controversy exists in FCA actions; (2) the qui tam provisions violate the Appointments Clause; (3) the FCA violates the separation of powers doctrine. We shall examine these contentions in turn, but first we will briefly examine the provisions of the FCA. The False Claims Act Under the FCA, any person who knowingly submits a false claim to the government is liable to the United States for a civil penalty and damages." }, { "docid": "17083610", "title": "", "text": "States retains ultimate power to dismiss the case, notwithstanding the objections of the qui tam plaintiff. Id. at 3730(c)(2)(A)-(B). Thus, in sum, the False Claims Act provides the Justice Department the authority to: (1) direct the action as primary counsel; (2) monitor an action while retaining the option to intervene later; and (3) move to dismiss or settle the action. The FCA has been “... carefully crafted to enable the executive to enter the action and take control of the course of the litigation.” Still-well, 714 F.Supp. at 1090; see also Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L.J. at 352 (observing that the FCA provides the Executive Branch with substantial control over qui tam litigation). Under the analysis adopted by the Supreme Court in Morrison, the FCA does not violate the separation of powers doctrine. The qui tam plaintiff does have relative freedom in pursuing his suit, but this freedom is subject to the limitations discussed above. More importantly, however, the “... independence from the executive branch of a litigator is not a constitutional bar.” Stillwell, 714 F.Supp. at 1093 (citing Morrison, 487 U.S. at 654, 108 S.Ct. at 2599); Truong, 728 F.Supp. at 622 (“False Claims Act guarantees the executive branch greater litigative control than ... the Ethics in Government Act____”); Newsham, 722 F.Supp. at 613 (same). Piqua attempts to distinguish the Ethics in Government Act from the FCA on the ground that the qui tam plaintiffs personal stake in an FCA action may adversely impact other governmental interests. However, the FCA protects against this risk because the Act allows the United States sufficient control over the litigation. The FCA provides adequate safeguards for the United States to protect its interests, as the Executive Branch has control over the prosecution of cases and their ultimate disposition. Therefore, we hold that the FCA does not violate the separation of powers doctrine. CONCLUSION This Court has carefully considered the Defendants’. arguments. We can find no aspect of the FCA that violates the Constitution. As a result of this conclusion, this Court must defer to the will of the" }, { "docid": "2573018", "title": "", "text": "relator, who is the real plaintiff in the suit”); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032, 1041 (6th Cir.1994) (stating that the FCA’s qui tam provisions \"do not contradict the constitutional principle of separation of powers. Rather, they have been crafted with particular care to maintain the primacy of the Executive Branch in prosecuting false-claims action, even when the relator has initiated the process”); Kelly, 9 F.3d at 745 (holding in part that the qui tam provisions of the FCA do not violate the constitutional principle of separation of powers); United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1155 (2d Cir.1993) (stating that \"the FCA qui tam provisions do not usurp the executive branch’s litigating function because the statute gives the executive branch substantial control over the litigation”); United States ex rel. Milam v. Univ. of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46, 48-49 (4th Cir.1992) (emphasizing the \"extensive power the government has to control [qui tam] litigation” and underscoring that the United States is the \"real plaintiff” in a qui tam action filed under the FCA, that it \"is entitled to the lion’s share of any amount recovered,” and that it may intervene upon a showing of good cause). . Rule 11, however, is perhaps less intrusive vis-a-vis the Executive Power than judicial intervention at the indictment phase, as the guilty plea implicates the adjudication of guilt — a distinctly judicial function. . There is also an argument that Article II’s Take Care Clause and Article Ill's standing requirement, resolved by the Court in Stevens, are two different sides of the same Separation of Powers coin. In both instances, the Judiciary may not enter into the traditional sphere of Executive power, and citizens cannot enlist the judiciary in a quest to police the government absent a personal interest distinct from that of all citizens. Although we find this argument persuasive, we limit our discussion to the issues examined herein. . We note also that our holding does not differ from that of at least one" }, { "docid": "22228782", "title": "", "text": "the government intervenes in the suit, the relator receives no less than fifteen and no more than twenty-five percent of the ultimate recovery. 31 U.S.C. § 3730(d)(1) (1988). If the government does not join the suit, the relator receives from twenty-five to thirty percent of the recovery. 31 U.S.C. § 3730(d)(2) (1988). We address on this appeal (1) UTC’s claim that the qui tam provisions of the FCA violate Article III of the Constitution; and thus did not validly vest Kreindler with standing to bring this action; (2) Krein-dler’s contention that the district court erred in its statute of limitations ruling; and (3) UTC’s argument that subject matter - jurisdiction was not proper under § 3730(e)(4)(A). ' A. Standing. UTC argues that the FCA violates Article III of the Constitution by granting standing to private individuals to sue on the government’s behalf when they have not personally suffered actual or threatened injury. The district court relied, 777 F.Supp. at 199, upon three recent cases upholding qui tam plaintiff standing: United States ex rel. Truong v. Northrop Corp., 728 F.Supp. 615 (C.D.Cal.1989); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 722 F.Supp. 607 (N.D.Cal.1989); and United States ex rel. Stillwell v. Hughes Helicopters, Inc., 714 F.Supp. 1084 (C.D.Cal.1989). Article III, section 2 of the Constitution confines federal court jurisdiction to the adjudication of “[c]ases” and “[cjontroversies” in which the plaintiff has standing to maintain thé suit. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The constitutional doctrine of standing requires the plaintiff to show actual or threatened injury resulting from defendant’s conduct that is redressible by a court. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1607-08, 60 L.Ed.2d 66 (1979). Congress, however, may create a legal interest and confer standing to assert it. “The actual or threatened injury required by Art. Ill may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’ ” Warth, 422 U.S. at 500, 95 S.Ct. at 2206 (quoting Linda R.S. v. Richard D., 410" }, { "docid": "17083596", "title": "", "text": "against the Plaintiffs by firing Ms. Burch and Mr. Kissinger and laying off Ms. Harmon. The Defendant denies the Plaintiffs’ allegations. At this point, however, we need not become to deeply immersed in the facts. The sole issue before this Court is whether the False Claims Act, 31 U.S.C. § 3729 et seq. (1992) (hereinafter “FCA” or “qui tam” provisions) is constitutional. DISCUSSION Overview The laws of Congress are presumed to be constitutional. See e.g., United States ex rel. Givler v. Smith, 775 F.Supp. 172, 175 (E.D.Pa.1991) (citing Fullilove v. Klutznick, 448 U.S. 448, 472, 100 S.Ct. 2758, 2771, 65 L.Ed.2d 902 (1980)). Nevertheless, the will of the majority may not trump the rights established by the Constitution. Marburg v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). The power of the federal courts to engage in judicial review is, for all practical purposes, unquestioned. See generally, Robert Bork, The Tempting of America (1990) (discussing the methods by which courts should engage in judicial review); Laurence H. Tribe, American Constitutional Law (2d ed. 1988) (survey-. ing Constitutional law and discussing judicial review). The focus of this Court’s inquiry must be on whether the FCA violates any provision of the Constitution itself. The Plaintiffs make elaborate arguments concerning the age and historical importance of qui tam statutes. The longevity of a statute, however, is not determinative of its Constitutionality. See generally, United States ex rel. Truong v. Northrop, 728 F.Supp. 615, 618 (C.D.Cal.1989) (rejecting historical analysis in considering the constitutional adequacy of standing in qui tam actions). Rather, it demonstrates that the will of the majority, exercised through Congress, has decided not to repeal such a law. Furthermore, the fact that the qui tam provisions may be successful in deterring fraud upon the government is also not at issue. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (the practical problems imposed by invalidating the legislative veto are not determinative in considering its constitutionality). Thus, this Court’s analysis is not driven by its approval or disapproval of the FCA, but rather" }, { "docid": "22935537", "title": "", "text": "the value interests of concerned bystanders” is at issue. Id. This personal stake derives from the following three factors: (1) the qui tam plaintiff must fund the prosecution of the FCA suit; (2) the qui tam plaintiff receives a sizable bounty if he prevails in the action; and (3) the qui tam plaintiff may be hable for costs if the suit is frivolous. Kreindler & Kreindler, 985 F.2d at 1154. Qui tam suits also are capable of judicial resolution. They involve allegations of fraud — an area of law that is neither novel nor extraordinarily complex. By resolving these suits, federal courts are not intruding into areas committed to the other branches of government. Instead, they are merely accommodating a congressional policy decision that relators may sue on behalf of the government for violations of the FCA. As we explain more fully in the next section of this opinion, in no way does this upset the tripartite allocation of power upon which our government is based. Givler, 775 F.Supp. 172, 180-81. B. Separation of Powers. We next consider whether the qui tam provisions of the FCA violate the principle of separation of powers. The FCA’s grant of authority to private parties to sue in the name of the United States for injuries to the federal treasury is certainly anomalous with respect to normal divisions of authority. But the question in this case is not whether the qui tam provisions fit neatly into usual public power distribution patterns; rather, the question is whether the Constitution prohibits use of this mechanism of civil law enforcement. To answer that question, we must determine whether Congress, under its policymaking authority, may place the prosecution of claims based on injuries to the government under the direction of qui tam relators. In other words, we must decide whether the separation of powers principle inherent in the structure of the Constitution proscribes assignment of this essentially prosecutorial function to private parties. 1. General Principles. The principle that the various powers of government must be separated and assigned to coordinate branches is fundamental to our form of government." }, { "docid": "17083605", "title": "", "text": "to federal law, and who exercise significant authority over actions by the federal government. Stillwell, 714 F.Supp. at 1094. Thus, the Appointments Clause prevents Congress from infringing upon the rights and responsibilities of the Executive Branch. Seattle Master Builders v. Pac. Northwest Elec. Power and Conservation Planning Council, 786 F.2d 1359, 1364-65 (9th Cir.1986), cert. denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989 (1987). In essence, Piqua argues that these qui tam Plaintiffs cannot litigate on behalf of the United States because they are not officers of the United States. However, the status of qui tam plaintiffs does not implicate the Appointments Clause, because qui tam plaintiffs are not officers of the United States. Qui tam plaintiffs are not appointed by Congress, they do not receive a federal salary, and they serve for no specified term. Stillwell, 714 F.Supp. at 1094, 1095. Furthermore, as the Stillwell court notes, qui tam plaintiffs are not vested with primary responsibility to enforce the FCA on behalf of the United States. Truong, 728 F.Supp. at 623. Instead, the United States retains this responsibility. The qui tam plaintiff only has a right to sue and pursue his or her own interest in monetary damages as a result of a single case. Id.; Newsham, 722 F.Supp. at 613. Moreover, the Executive Branch may limit the rights of the qui tam plaintiff at any point by intervening upon a showing of good cause. Id,. Thus, in FCA actions, we cannot find any Congressional infringement upon the rights and responsibilities of the Executive Branch. See Seattle Master, 786 F.2d at 1364-65. In sum, because qui tam plaintiffs are not officers of the United States, the FCA does not violate the Appointments Clause. Separation of Powers Piqua finally contends that the False Claims Act violates the separation of powers doctrine by undermining the power of the Executive Branch to control litigation that involves the United States. The Constitution requires that the Executive Branch execute and enforce the federal laws. U.S. Const, art. II, § 3. The Supreme Court has recently analyzed the separation of powers doctrine in" }, { "docid": "6936424", "title": "", "text": "engage in enforcement of federal law); United States ex rel. Burnette v. Driving Hawk, 587 F.2d 23, 24 (8th Cir.1978) (“Whether a penalty may be enforced by a civil [qui tam] action brought by a private citizen or only by a criminal suit prosecuted by the government is a matter of legislative discretion, direction and intent_”). Even after Buckley v. Valeo, federal courts have consistently upheld citizen suit provisions against constitutional challenges based on the theory that the Constitution forbids enlisting private citizens to aid public law enforcement efforts. See, e.g., NRDC v. Outboard Marine Corp., 692 F.Supp. at 815-17; Chesapeake Bay Foundation v. Bethlehem Steel Corp., 652 F.Supp. at 623-26. As discussed above, any concern that private enforcement of public rights under the False Claims Act intrudes on executive prerogative is ameliorated by the Act’s provisions. For these reasons, this Court concludes that the Appointments Clause does not raise a constitutional infirmity in the amended qui tam provisions of the False Claims Act. IV. Standing: Under 31 U.S.C.A. section 3730(b)(1), a private person may 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" }, { "docid": "22228788", "title": "", "text": "102 S.Ct. at 756-57. Here, by contrast, the qui tam relator stands in the shoes of the government, which is the real party in interest. The traditional Article III separation-of-powers concerns, as enunciated in Valley Forge, 454 U.S. at 472-74, 102 S.Ct. at 758-60, are not violated by allowing qui tam suits under the FCA. Such suits do not constitute an intrusion into areas committed to other governmental branches, for the courts are specifically engaged in the implementation of legislative policy. Thus, in adjudicating FCA cases, courts further the Congressional purpose of augmenting executive enforcement of fraud cases. See Public Interest Bounty Hunters v. Board of Governors of the Fed. Reserve Sys., 548 F.Supp. 157, 161 (N.D.Ga.1982) (“Qui tam plaintiffs therefore stand in the position of ‘private attorneys general’ whom Congress has ‘deputized’ to enforce federal laws.”); see also Priebe & Sons, Inc. v. United States, 332 U.S. 407, 418 (1947) (Frankfurter, J., dissenting) (in qui tam actions, “society makes individuals the representatives of the public for the purpose of enforcing a policy explicitly formulated by legislation”); Spann v. Colonial Village, Inc., 899 F.2d 24, 30 (D.C.Cir.1990) (plaintiff enforcing Fair Housing Act of 1968 acts as private attorney general vindicating Congressional policy), cert. denied, 498 U.S. 980, -, 111 S.Ct. 508, 509, 112 L.Ed.2d 521 (1990), — U.S. -, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991). Accordingly, the Supreme Court has stated that: Qui tam suits have been frequently permitted by legislative action, and have not been without defense by the courts.... Congress has power to choose this method to protect the government from burdens fraudulently imposed upon it; to nullify the ... statute because of dislike of the independent informer sections would be to exercise a veto power which is not ours. Sound rules of statutory interpretation exist to discover and not to direct the Congressional will. United States ex rel. Marcus v. Hess, 317 U.S. 537, 541-42, 63 S.Ct. 379, 383, 87 L.Ed. 443 (1943) (footnotes omitted). More recently, in Lujan v. Defenders of Wildlife, — U.S. -, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Court, although" }, { "docid": "22228787", "title": "", "text": "so largely depends.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Because the qui tam relator: (1) funds the prosecution of the FCA suit, (2) will receive a private share in the government’s recovery only upon prevailing, and (3) may be liable for costs if the suit is frivolous, the relator’s personal stake in the case is sufficiently ensured. See United States ex rel. Givler v. Smith, 775 F.Supp. 172, 181 (E.D.Pa.1991); Truong, 728 F.Supp. at 619 n. 7; Stillwell, 714 F.Supp. at 1098-99. UTC argues that such an interpretation permits Congress to circumvent Article III standing requirements. Citing Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), UTC argues that Congress cannot authorize suit by a relator who has not suffered an injury distinct from the harm suffered by all citizens when the government is defrauded. In Valley Forge, however, plaintiffs claimed standing only as taxpayers or citizens. 454 U.S. at 469-70, 102 S.Ct. at 756-57. Here, by contrast, the qui tam relator stands in the shoes of the government, which is the real party in interest. The traditional Article III separation-of-powers concerns, as enunciated in Valley Forge, 454 U.S. at 472-74, 102 S.Ct. at 758-60, are not violated by allowing qui tam suits under the FCA. Such suits do not constitute an intrusion into areas committed to other governmental branches, for the courts are specifically engaged in the implementation of legislative policy. Thus, in adjudicating FCA cases, courts further the Congressional purpose of augmenting executive enforcement of fraud cases. See Public Interest Bounty Hunters v. Board of Governors of the Fed. Reserve Sys., 548 F.Supp. 157, 161 (N.D.Ga.1982) (“Qui tam plaintiffs therefore stand in the position of ‘private attorneys general’ whom Congress has ‘deputized’ to enforce federal laws.”); see also Priebe & Sons, Inc. v. United States, 332 U.S. 407, 418 (1947) (Frankfurter, J., dissenting) (in qui tam actions, “society makes individuals the representatives of the public for the purpose of enforcing a policy explicitly formulated" }, { "docid": "7854906", "title": "", "text": "decisions do not constitute an absolute restraint on congressional action, they do demonstrate the Court’s reluctance to uphold federal legislation that distorts the balanced federal-state political process. Application of the FCA’s qui tam provisions to the states interferes with the political process in ways which seriously undermine the position of the states vis-á-vis the federal government. As will be demonstrated in Part IV.C.3, infra, assigning the federal government’s decision to sue a state to private qui tam plaintiffs — who are accountable to no one and motivated primarily by the hope of financial gain — prevents congresspersons from fulfilling their representative function of interceding on behalf of their home states in disputes with the federal government and interferes in the cooperative relationships between state agencies and their federal counterparts. C. Separation of Powers Challenges There is no need now to revisit ease law upholding the constitutionality of the FCA’s qui tam provisions in suits against private parties. See, e.g., United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1154 (2d Cir.1993), cert. denied, 508 U.S. 973, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993) (qui tam relators have standing to sue on the government’s behalf even though they personally have not suffered actual or threatened injury); United States ex rel. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir.1993), cert. denied, 510 U.S. 1140, 114 S.Ct. 1125, 127 L.Ed.2d 433 (1994) (FCA qui tam provisions do not violate Article Ill’s standing requirements, the Appointments Clause, or separation of powers principles). Nevertheless, it should be noted that FCA qui tam suits stand on shaky constitutional ground with respect to the principle of separation of powers as embodied in Article II’s Appointments and Take Care Clauses and Article Ill’s standing requirements. Policy considerations militating in favor of qui tam suits against non-state defendants may outweigh the serious separation of powers concerns these suits raise. A practical and flexible approach to modifying the lines separating powers of the three parts of federal government is necessary. The. precise contours of the legislative, executive and judicial powers are not firmly fixed." }, { "docid": "11018093", "title": "", "text": "to a wrongful discharge claim under 31 U.S.C. § 3730(h). Northrop points to the language “... on which the violation of section 3729 is committed____” Based upon this language, Northrop concludes that the six year statute of limitations only applies to fraud violations under 31 U.S.C. § 3729. We are unpersuaded by Northop’s argument. The statute of limitations begins with “[a] civil action under § 3730 — .” Congress did not specify parts or subsections of § 3730 which had a different statute of limitations. Based upon the plain language of the statute, we can only infer that Congress intended all parts of 31 U.S.C. § 3730 to have the same statute of limitations. Finally, we note that a relator’s qui tam claim is often interrelated to his claim for retaliation. See generally, United States, ex rel. Barbara Burch v. Piqua Engineering, Inc., 803 F.Supp. 115, 119 (S.D.Ohio 1992) (J. Spiegel) (noting that qui tam plaintiffs have standing because of the potential ramifications to their employment status by initiating an action under the FCA). Given the interrelatedness of the two actions, Congress rationally concluded that the two actions should have identical statutes of limitation. Therefore, based upon the plain meaning of the statute, we conclude that Mr. Grand has filed a timely cause of action under 31 U.S.C. § 3730(h) for retaliation. One court has considered the same issue that is before this Court, but reached a different conclusion. In United States, ex rel. Truong v. Northrop Corp., Case No. CV88-967 MRP (C.D.Cal. Nov. 26, 1991), the court applied the California statute of limitations and barred the Plaintiff’s retaliation claim. The Truong court stated that the “literal reading” of the statute would time bar the plaintiff’s claim. Id. at 5. Nevertheless, the Truong court reasoned that to apply the plain meaning of the statute could result in an illogical result: Congress cannot have meant for an employee’s private claim for retaliation against an employer to be time-barred before that employee suffers the retaliation. This impracticable result is occasioned by defining an accrual date for the limitations period of the private" }, { "docid": "7808642", "title": "", "text": "(5th Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978); United States ex rel. Truong v. Northrop Corp., 728 F.Supp. 615, 616-620 (C.D.Cal.1989); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 722 F.Supp. 607, 614-615 (N.D.Cal.1989). We could not lightly conclude that the party upon whose standing the justiciability of the case depends is not the real party in interest. Congress chose, as a means to encourage citizens to come forward with knowledge of frauds against the government, to give economic incentives to a qui tam plaintiff. In addition, it gave the Executive Branch the option to allocate its resources elsewhere and permit the relator to prosecute the action on its behalf. Through this procedure, Congress could reasonably have envisioned that more fraud would be discovered, more litigation could be maintained, and more funds would flow back into the Treasury. On the other hand, perhaps Congress should have taken note of the possibility that states would be harassed by vexatious qui tam suits in federal courts. Perhaps it did, but decided that the benefits of the qui tam scheme outweighed its defects. In any event, we have no inclination or power to delve into the wisdom of the balance Congress struck. United States ex rel. Marcus v. Hess, 317 U.S. 537, 546-547, 63 S.Ct. 379, 385, 87 L.Ed. 443 (1943) (policy arguments against qui tam suits were “addressed to the wrong forum”); see Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469 (1957) (“Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature’s range of choice.”). Congress has let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government. States and state agencies, like the Center, may prefer the dignity of being chased only by the regular troops; if so, they must seek relief from Congress. D. We hold that the United States is" }, { "docid": "17083611", "title": "", "text": "a constitutional bar.” Stillwell, 714 F.Supp. at 1093 (citing Morrison, 487 U.S. at 654, 108 S.Ct. at 2599); Truong, 728 F.Supp. at 622 (“False Claims Act guarantees the executive branch greater litigative control than ... the Ethics in Government Act____”); Newsham, 722 F.Supp. at 613 (same). Piqua attempts to distinguish the Ethics in Government Act from the FCA on the ground that the qui tam plaintiffs personal stake in an FCA action may adversely impact other governmental interests. However, the FCA protects against this risk because the Act allows the United States sufficient control over the litigation. The FCA provides adequate safeguards for the United States to protect its interests, as the Executive Branch has control over the prosecution of cases and their ultimate disposition. Therefore, we hold that the FCA does not violate the separation of powers doctrine. CONCLUSION This Court has carefully considered the Defendants’. arguments. We can find no aspect of the FCA that violates the Constitution. As a result of this conclusion, this Court must defer to the will of the elected branches of government as expressed in the FCA. Accordingly, the Defendant’s motion to dismiss is denied. SO ORDERED. . The Court has greatly benefited in determining this matter by excellent briefing from all counsel. . We recognize, of course, that the long history of the FCA is probative of the fact that courts have had ample opportunity to invalidate the FCA. See United States ex rel. Rudd v. Gen'l Contractors, Inc., No. C-89-397-RJM, 4 (E.D.Wash. Dec. 4, 1990) (‘‘[t]he concept of qui tam is so deeply rooted in the nation’s history that it is most improbable that any court today could divine some infirmity of constitutional magnitude which would not have been equally apparent many decades, if not centuries, ago\"). . We note, however, that no court has issued a decision that is binding upon this Court. . Congress amended the FCA in 1986 to deter any improprieties by defense contractors. False Claims Amendments Act of 1986, 31 U.S.C. § 3729. . Thus, we disagree with the Defendant’s assertion that qui tam plaintiffs are" } ]

[ { "docid": "22541977", "title": "", "text": "premise that representation by counsel is essential to ensure a fair trial. The Court concedes this and acknowledges that “a strong argument can surely be made that the whole thrust of those decisions must inevitably lead to the conclusion that a State may constitutionally impose a lawyer upon even an unwilling defendant.” Ante, at 833. Nevertheless, the Court concludes that self-representation must be allowed despite the obvious dangers of unjust convictions in order to protect the individual defendant’s right of free choice. As I have already indicated, I cannot agree to such a drastic curtailment of the interest of the State in seeing that justice is done in a real and objective sense. Ill In conclusion, I note briefly the procedural problems that, I suspect, today's decision will visit upon trial courts in the future. Although the Court indicates that a pro se defendant necessarily waives any claim he might otherwise make of ineffective assistance of counsel, ante, at 834 — 835, n. 46, the opinion leaves open a host of other procedural questions. Must every defendant be advised of his right to proceed pro se? If so, when must that notice be given? Since the right to assistance of counsel and the right to self-representation are mutually exclusive, how is the waiver of each right to be measured? If a defendant has elected to exercise his right to proceed pro se, does he still have a constitutional right to assistance of standby counsel? How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? Must he be allowed to switch in midtrial? May a violation of the right to self-representation ever be harmless error? Must the trial court treat the pro se defendant differently than it would professional counsel? I assume that many of these questions will be answered with finality in due course. Many of them, however, such as the standards of waiver and the treatment of the pro se defendant, will haunt the trial of every defendant who elects to exercise his right to self-representation. The procedural problems spawned by an" } ]

[ { "docid": "10908184", "title": "", "text": "83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963). The defendant also has a right under the Sixth Amendment to defend himself without the assistance of counsel if that decision is made intelligently and knowingly, with full awareness of the right to counsel and the consequences of its waiver. Faretta v. California, 422 U.S. 806, 835-36, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981). If the defendant has represented himself after such.a knowing and intelligent decision, he has not been denied his Sixth Amendment right to counsel. Faretta v. California, 422 U.S. at 834 n. 46, 95 S.Ct. at 2540 n. 46. The determination of whether a defendant’s election is knowing and intelligent depends on the particular facts and circumstances of the case, ‘“including the background, experience, and conduct of the accused.’ ” Edwards v. Arizona, 451 U.S. at 482, 101 S.Ct. at 1883 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). A defendant electing to proceed pro se need not have all the understanding and skill of a lawyer, see Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541 (absence of “technical legal knowledge, as such, [i]s not relevant to an assessment of [the defendant’s] knowing exercise of the right to defend himself’), so long as he has the capacity for making a rational decision and has been “made aware of the dangers and disadvantages of self-representation,” id. at 835, 95 S.Ct. at 2541; see also United States v. Purnett, 910 F.2d 51, 54-55 (2d Cir.1990). The court should strive for a “ ‘full and calm discussion’ ” with the defendant in order to satisfy itself that he has the requisite capacity to understand and sufficient knowledge to make a rational choice. United States v. Tompkins, 623 F.2d 824, 828 (2d Cir.1980) (quoting United States v. Spencer, 439 F.2d 1047, 1050 (2d Cir.1971)). We conclude that the district court’s allowing Aguilar to represent himself was consistent with these principles. Aguilar’s motion seeking permission to proceed pro se" }, { "docid": "22350886", "title": "", "text": "dangers of proceeding pro se.” (Maldonado brief on appeal at 67.) He also contends that the evidence was insufficient to support his conviction of conspiracy. We reject all of his contentions. 1. Waiver of the Right to Counsel A person accused of a crime has the right to conduct his own defense. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562 (1975). However, one who chooses to represent himself at a criminal trial gives up substan tial benefits, and he should not be allowed to forgo those benefits unless he does so knowingly and intelligently. Id. at 835, 95 S.Ct. at 2541; see also United States v. Tompkins, 623 F.2d 824, 827-28 (2d Cir.1980) (\"there can be no waiver of the right to counsel absent a purposeful choice reflecting an unequivocal intent to forego the assistance of counsel\"). Though the defendant himself need not have the skills and experience of a lawyer to validate his choice, there must be assurance that he has been \"made aware of the dangers and disadvantages of self-representation.\" Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541. In order to assure itself that the accused's election to represent himself is made knowingly and intelligently, the court must ordinarily explore the facts and circumstances surrounding the case, including \"`the background, experience, and conduct of the accused.'\" United States v. Tompkins, 623 F.2d at 827 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Though such an examination will normally entail formal questioning of the defendant, the \"requirement of such a `full and calm discussion,' ... is not absolute,\" United States v. Tompkins, 623 F.2d at 828, so long as the record plainly reveals that the defendant's choice was knowing and intelligent. When the defendant is or has been a practicing attorney, it may well be possible to ascertain the state of his knowledge from the record despite the lack of the preferred direct questioning. In United States v. Campbell, 874 F.2d 838 (1st Cir.1989), which involved an attorney defendant, the court stated" }, { "docid": "22803809", "title": "", "text": "to proceed with able appointed counsel is a “voluntary” waiver. Maynard, 545 F.2d at 278. Since the trial judge properly exercised his discretion in finding that the defendant did not have justifiable reasons for requesting a further substitution of counsel, Gallop’s argument that his waiver was not voluntary is without merit. Even if the choice to proceed pro se is voluntary, however, the court must still ensure that the decision to proceed pro se is made knowingly and intelligently. Padilla, 819 F.2d at 956; Welty, 674 F.2d at 188. The mere fact that an accused may understand that he has right to counsel and desires to waive the right does not automatically end the court’s responsibility. Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948). As the Supreme Court noted in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975): Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Id. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). While the Faretta Court recognized the absolute right of a defendant to represent himself as long as that decision is made knowingly, intelligently, and voluntarily, it did not lay down detailed guidelines concerning what tests or lines of inquiry a trial judge is required to conduct to determine whether the defendant’s decision was “knowing and intelligent.” The circuit courts have split on the type of record necessary to establish whether a defendant’s waiver of counsel is knowing and intelligent. The Third Circuit requires the trial judge to make a searching inquiry on the record and the failure to do so would be a reversible error. See Welty, 674 F.2d at 192-93. In the Sixth Circuit, the court" }, { "docid": "3842681", "title": "", "text": "the defendant’s decision to waive his right to counsel. Avery, 208 F.3d at 601. The most reliable way for a district court to ensure that the defendant has been adequately warned of the dangers and disadvantages of self-representation is to conduct a formal inquiry. United States v. Moya-Gomez, 860 F.2d 706, 733 (7th Cir.1988). However, failure to conduct a full inquiry is not necessarily fatal. “[T]he ultimate question is not what was said or not said to the defendant but rather whether he in fact made a knowing and informed waiver of counsel.” Id. at 733. The first factor that we consider is whether the district court made a formal inquiry into Todd’s decision to proceed pro se. District judges are not expected to give “a hypothetical lecture on criminal law.” Moyar-Gomez, 860 F.2d at 732. However, the court should explore whether the defendant realizes the difficulties he will encounter in acting as his own attorney and advise the defendant that proceeding pro se is unwise. Id. It is not enough for the court merely to confirm that it is the defendant’s wish to represent himself; rather, the court must impress upon the defendant the disadvantages of self-representation. Id. at 734. Todd first elected to proceed without counsel on July 10, 2003, and did so again on September 4. Both times the district court limited its inquiry to whether Todd understood that the court would appoint no further attorneys. These inquiries were inadequate because the court failed to probe whether Todd recognized the disadvantages of proceeding pro se. Moya-Gomez, 860 F.2d at 734. When the issue of representation reemerged on October 2, several days before trial, the court thoroughly admonished Todd of the dangers of proceeding without counsel. Pretrial Tr. 10.02.03 at 22-25. Yet, the adequacy of the October 2 warning did not compensate for the court’s failure to properly warn Todd before allowing him to proceed pro se for two, brief periods — from July 10 through August 4 and from September 4 through October 2 — prior to trial. This weighs against finding that Todd’s waivers of his" }, { "docid": "22790499", "title": "", "text": "Zerbst, 304 U. S. 458, 464 (1938). Tovar contends that his waiver of counsel in November 1996, at his first OWI plea hearing, was insufficiently informed, and therefore constitutionally invalid. In particular, he asserts that the trial judge did not elaborate on the value, at that stage of the case, of an attorney’s advice and the dangers of self-representation in entering a plea. Brief for Respondent 15. We have described a waiver of counsel as intelligent when the defendant “knows what he is doing and his choice is made with eyes open.” Adams, 317 U. S., at 279. We have not, however, prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. See Johnson, 304 U. S., at 464. As to waiver of trial counsel, we have said that before a defendant may be allowed to proceed pro se, he must be warned specifically of the hazards ahead. Faretta v. California, 422 U. S. 806 (1975), is instructive. The defendant in Faretta resisted counsel’s aid, preferring to represent himself. The Court held that he had a constitutional right to self-representation. In recognizing that right, however, we cautioned: “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing____” Id., at 835 (internal quotation marks omitted). Later, in Patterson v. Illinois, 487 U. S. 285 (1988), we elaborated on “the dangers and disadvantages of self-representation” to which Faretta referred. “[A]t trial,” we observed, “counsel is required to help even the most gifted layman adhere to the rules of procedure and evidence, comprehend the subtleties of voir dire, examine and cross-examine" }, { "docid": "22373631", "title": "", "text": "L.Ed. 309, (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, at 279, 63 S.Ct. [236,] at 242, 87 L.Ed. 268. Our own opinions echo this concern. In United States v. Howell, 11 U.S.C.M.A. 712, 717, 29 C.M.R. 528, 533 (1960), this Court stated: We will recognize the general rule is that a waiver of this sort [to the assistance of counsel] should not be accepted by a law officer unless it is shown to be intentional and with full knowledge of its consequences. At the appellate level, as at the trial, it is important not only that the individual be advised concerning the right to be represented by an attorney but of the consequences of proceeding or of permitting his appeal to proceed without the assistance of an attorney. Faretta v. California, supra. In the instant case, the trial defense counsel had the duty to advise the appellant of those rights. The form signed by the appellant indicates that he received advice concerning the right to be represented by an attorney on his appeal. However, we believe the advice given was unduly restricted and did not adequately and fully advise the appellant concerning the appeal process. An accused convicted at trial cannot make an informed decision concerning whether to accept or reject representation by an attorney in his appeal from that conviction unless he is made aware of the powers of the Court of Military Review and of the defense counsel’s role in causing those powers to be exerted. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Counsel’s role at that stage of the proceeding includes the thorough examination of the record of trial and setting forth for the Court of Military Review" }, { "docid": "22469436", "title": "", "text": "up, that he is “made aware of the dangers and disadvantages of self-representation,” Faretta, su pra, 422 U.S. at 835, 95 S.Ct. at 2541. Although the nature of the representation the defendant is receiving from his counsel is relevant to a decision to proceed pro se, it is not necessary for the trial judge to explore the confidential relationship between the defendant and his attorney in order to make certain that the defendant knows the problems he faces in dispensing with legal representation entirely. Even if Welty’s attempt to replace Pedicini with new counsel was, as the district court judge believed, designed merely to delay the trial, once Welty’s request for substitution of counsel was denied — and the possibility for delay obviated — the court still had the obligation to ensure that Welty’s choice between his remaining options, retention of Pedicini or self-representation, was intelligently made. The fact that Welty may have believed that he could gain some improper advantage in the judicial process by firing his counsel and proceeding pro se does not mean that he realized and had knowledge of all the implications and possible pitfalls of self-representation. Finally, the fact that Welty was, in the trial judge’s words, “an experienced litigant,” Def.App. at 13, cannot, without more, suffice to establish that Welty’s reluctant decision to proceed pro se — in the wake of the judge’s insistence that he decide “one way or the other now,” id. at 11 — was knowingly and intelligently made. There is no indication that Welty had ever represented himself during a trial before. In any event, we could not extrapolate from Welty’s participation or self-representation in other cases that he made a knowing and intelligent waiver of counsel in this case. Cf. United States v. Harrison, 451 F.2d 1013 (2d Cir. 1971) (per curiam) (holding that there was no intelligent waiver and not enough exploration by the trial judge even where the defendant was an attorney who professed familiarity with criminal law). Unless a criminal defendant knowingly and voluntarily waives his right to the assistance of counsel, it cannot be said" }, { "docid": "13829048", "title": "", "text": "and, although the court requested Donovan to act as standby counsel at trial, Edwards was allowed to conduct his own defense. During Lowe’s testimony as a prosecution witness his guilty plea was divulged. A jury convicted Edwards on all fourteen counts, and the court sentenced him to a prison term of twenty-one years. Appellant raises four issues on appeal: whether the district court (1) erred in allowing him to represent himself at trial; (2) erred in admitting evidence of eoindictee Lowe’s guilty plea; (3) failed to dispose of all pretrial motions; and (4) relied upon misinformation or otherwise abused its discretion in setting appellant’s sentence. Concluding that each of these contentions is without merit, we affirm. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a criminal defendant has a constitutional right to conduct his own defense when he “knowingly and intelligently” chooses to do so. Id. at 835, 95 S.Ct. at 2541. Because assertion of the right of self-representation constitutes a waiver of the right to counsel, as well as a relinquishment of the important benefits associated with that right, the trial judge must conduct a hearing to ensure that the accused understands the dangers and disadvantages of proceeding pro se. Hance v. Zant, 696 F.2d 940, 949 (11th Cir.1983). The trial judge must determine that the defendant “knows what he is doing and [that] his choice is made with open eyes.” Faretta, supra, 422 U.S. at 835, 95 S.Ct. at 2541, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942). The record in this case shows that the trial judge questioned Edwards extensively on his decision to proceed pro se. The court inquired into Edwards’ educational background, which included three years of college. In response to the court’s query into his prior courtroom experience, Edwards replied that he had done some reading of the law during his prior prison term and that he had a “pretty fair knowledge of the law, how it works.” The court emphasized" }, { "docid": "4493197", "title": "", "text": "Abuse of Discretion in Allowing Self-Representation The first matter to resolve is whether the district court abused its discretion in allowing Eads to represent himself at trial. In considering Eads’s waiver of his right to counsel, our task is to examine the record as a whole to see if he “knowingly and intelligently” waived his right to .counsel. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In determining whether Eads’s decision was made knowingly and intelligently, we consider (1) whether and to what extent the district court conducted a “formal hearing” into Eads’s decision to represent himself, (2) whether there is other evidence in the record that establishes that Eads “understood the disadvantages of self-representation,” (3) Eads’s “background and experience,” and (4) the “context” of Eads’s decision to proceed pro se. See United States v. Avery, 208 F.3d 597, 601 (7th Cir.2000) (citations omitted). In this case, the district court questioned Eads at length about whether he had ever studied law, represented himself in a criminal proceeding, understood the charges and penalties he was facing, and understood the sentencing guidelines. Finally, the court stated: Mr. Eads, I need to advise you that, in my opinion, a trained lawyer would defend you far better than you could defend yourself, and that I think it’s unwise of you to try to represent yourself. You’re not familiar with the law. You’re not familiar with court procedure. You’re not familiar with the Rules of Evidence. And so I strongly urge you not to try to represent yourself but you do have a constitutional right to do that. The court also determined that no one else had coaxed him into self-representation and that Eads’s court-appointed lawyer had discussed the consequences of trying the case without the benefit of counsel. We have no doubt that the district court conducted its hearing in conformity with Faretta and ensured that Eads was fully aware of the hazards and disadvantages of self-representation. See United States v. Sandies, 23 F.3d 1121, 1126 (7th Cir.1994) (citing United States v. Belanger, 936 F.2d 916, 918 (7th" }, { "docid": "23210888", "title": "", "text": "case range from the misguided or naive who just wants to tell the jury the truth, through the pressured one under the hardships of the accusation of crime and the sophisticated person enamored with his own ability, to the crafty courtroom experienced one who ruthlessly plays for the breaks.. All eventually play the part of the proverbial fool. Accordingly, reasons for the waiver are not the concern of the trial court. However, the American criminal jurisprudence is geared to the inviolate constitutional concept that an accused is entitled to competent counsel and legal representation, either of his own choice and arrangement or court appointed at government expense. So it is that the keystone determination or resolution of the two-pronged problem in the first instance is whether the request to waive the assistance of competent counsel is competently and intelligently made because with that determination the die is cast. Nothing whatsoever can thereafter occur during the pilotless journey which will evidence the state of mind of the accused or information at hand upon which he at that time intelligently waived his constitutional right of counsel. We see no rational distinction between the test for determining a competent and intelligent waiver of competent counsel and that for determining a competent, voluntary and intelligent waiver of any other constitutional right. Judicial experience with human frailties has long since taught the necessities of safeguarding the accused in criminal proceedings. See the historical notes to the 1966 amendment to Rule 11, Federal Rules of Criminal Procedure. We cannot visualize a less minimal requirement than the District Court shall not grant & request to waive counsel and proceed pro se without addressing the accused personally and determining on the record that the demand to waive counsel and proceed pro se is competently and intelligently made with understanding of the nature of the charge and the penalties involved. The trial court in meeting its obligation to assure the accused and the government a fair trial has various options under the controlled circumstances sanction. As stated in Price, supra, “pro se representation is usually inadequate and often inconclusive" }, { "docid": "3842680", "title": "", "text": "trial is “perhaps the most critical period of the proceedings.” Wade, 388 U.S. at 225, 87 S.Ct. 1926 (quoting Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). Since Todd was arraigned on February 19, 2003, his Sixth Amendment right to counsel had attached well before July 10, which was the first time that he elected to proceed without an attorney. A criminal defendant is entitled to waive his right to counsel and to conduct his own defense when he knowingly and intentionally elects to do so. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). To determine whether a defendant’s decision to proceed pro se was knowing and informed, we consider four factors: (1) whether and to what extent the district court conducted a formal hearing into the defendant’s decision to represent himself; (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation; (3) the background and experience of the defendant; and (4) the context of the defendant’s decision to waive his right to counsel. Avery, 208 F.3d at 601. The most reliable way for a district court to ensure that the defendant has been adequately warned of the dangers and disadvantages of self-representation is to conduct a formal inquiry. United States v. Moya-Gomez, 860 F.2d 706, 733 (7th Cir.1988). However, failure to conduct a full inquiry is not necessarily fatal. “[T]he ultimate question is not what was said or not said to the defendant but rather whether he in fact made a knowing and informed waiver of counsel.” Id. at 733. The first factor that we consider is whether the district court made a formal inquiry into Todd’s decision to proceed pro se. District judges are not expected to give “a hypothetical lecture on criminal law.” Moyar-Gomez, 860 F.2d at 732. However, the court should explore whether the defendant realizes the difficulties he will encounter in acting as his own attorney and advise the defendant that proceeding pro se is unwise. Id. It is not enough for the court merely" }, { "docid": "1970234", "title": "", "text": "Parole, 94 P.3d 283 (Utah 2004). Mr. Smith next argues that the board breached an implied contract contained in his parole agreement when it, rather than a judge, determined he had violated the térms of his parole. Regardless of how Mr. Smith construes the language in his parole agreement, Utah law authorizes the board to decide if the conditions of parole have been violated. See Utah Code Ann. § 77-27-11. B. Denial of Right to Self-Representation Mr. Smith next asserts that he was improperly denied the right to represent himself. When a motion to proceed pro se is made, we review de novo whether a constitutional violation occurred and for clear error the factual findings underlying the district court’s decision to deny the motion. United States v. Mackovich, 209 F.3d 1227, 1236 (10th Cir.2000). The constitutional right to represent oneself in a criminal trial is conditioned upon a knowing, voluntary, and intelligent waiver of the right to be represented by counsel. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Determining whether the defendant has competently waived his right to counsel, then, should be based on “a thorough and comprehensive formal inquiry ... on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se.” United States v. Willie, 941 F.2d 1384, 1388 (10th Cir.1991). The competence of a defendant’s waiver of the right to counsel depends only on his competence in waiving that right, however, not on whether he is competent to represent himself at trial. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Indeed, the Supreme Court has explained that a defendant’s technical legal knowledge is not relevant to whether he is competent to waive the right to counsel; therefore, a criminal defendant’s ability to defend himself is inconsequential to whether he is competent to make that choice for himself. Id. at 400, 113 S.Ct. 2680. Whether a defendant knowingly, intelligently, and voluntarily relinquished" }, { "docid": "23586295", "title": "", "text": "the election [to waive counsel] must be tested before trial and that the record must show the basis for the court’s finding that the right to counsel has been competently and intelligently waived. Since the trial judge may not allow a defendant to represent himself without first determining that there has been a waiver of the right to counsel, the decision on the defendant’s competence to waive cannot be deferred. Id. at 1250 (emphasis added). We concluded that “Aponte’s conviction must be reversed because the record does not disclose that he knowingly and intelligently waived his right to counsel before electing to represent himself.” Id. at 1249. We explained that the purpose of requiring the determination to be made before trial was that if the district court delayed the determination until after the trial had commenced, there was a danger that the trial judge might impermissibly consider the defendant’s post-waiver conduct in judging the validity of the waiver. The district court in this case failed to determine before trial whether Kimmel made a knowing and intelligent waiver of the right to counsel as required by Aponte. It merely accepted Kimmel’s decision without making any of the inquiries which would have allowed it to decide whether the waiver was knowing and intelligent. The reasons which led us, in Aponte, to proscribe post facto inquiries are especially pertinent here. In this case the danger that the trial court will “impermissibly consider” the defendant’s conduct after the purported waiver is obvious. Here, the majority allows a post facto examination not only after the trial has been completed, but after the court has heard post-trial motions brought by Kimmel acting pro se. Thus, the limited remand presents the danger that the district court may impermissibly consider factors not before the court at the time the waiver was accepted, the very danger that our holding in Aponte was intended to prevent. In light of the uniform procedure of this court of reversing the conviction and remanding for a new trial when the record in a direct appeal does not demonstrate a valid waiver, I do" }, { "docid": "12910450", "title": "", "text": "KRAVITCH, Circuit Judge: The sixth amendment guarantees not only a defendant’s right to the assistance of counsel at a criminal trial, but also the right to waive counsel and personally present his or her own defense. The defendant faces serious risks by pursuing the latter course, and the Supreme Court has required that the decision to proceed pro se be made knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Id. (citation omitted). In a federal habeas corpus petition, 28 U.S.C. § 2254, Eddie Strozier contends that his decision to waive counsel and represent himself at his criminal trial was not knowing and intelligent. The district court denied relief. On appeal, this court reversed and remanded for an evidentiary hearing on the waiver issue. Strozier v. Newsome, 871 F.2d 995 (11th Cir.1989) (“Strozier I”). At the evidentiary hearing before a magistrate, petitioner testified about the facts pertinent to waiver, as did Michael Whaley, the prosecutor at petitioner’s 1983 criminal trial, and William Auld, one of the three lawyers who handled petitioner’s case before trial. The magistrate found that petitioner had voluntarily relinquished his right to counsel before trial and recommended denial of habeas corpus relief. The district court adopted the report and recommendation denying relief, and petitioner again appeals. FACTUAL BACKGROUND Petitioner had three successive lawyers before his trial: an appointed public defender, Auld, and T.V. Mullinax. Petitioner testified at the evidentiary hearing that he became dissatisfied with his latest counsel, Mullinax, on May 16, 1983, the day his criminal trial was scheduled to begin, because he felt Mullinax had not adequately prepared a defense to the charges against him of aggravated assault with intent to rape and kidnapping. Before voir dire, Mullinax informed the court" }, { "docid": "23579559", "title": "", "text": "GOODWIN, Chief Judge: Defendant-appellant Calvin Lyniol Robinson appeals his conviction for conspiracy to import marijuana and hashish and related offenses, claiming various constitutional violations in connection with the conduct of his trial. The charges of which Robinson was convicted were based upon the government’s seizure of forty-three tons of hashish and thirteen tons of marijuana found welded inside the hull of a barge captained by Robinson. As the jury was being selected for his trial, Robinson made an election to proceed pro se. The district court found that Robinson’s waiver was knowing, voluntary, and intelligent and dismissed defense counsel. Robinson represented him self throughout the trial and was convicted on all counts. I. Validity of Robinson’s Waiver Whether Robinson’s waiver of his right to counsel was made knowingly, intelligently, and voluntarily is a mixed question of law and fact which we review de novo. Harding v. Lewis, 834 F.2d 853, 857 (9th Cir.1987), cert. denied, 488 U.S. 871; 109 S.Ct. 182, 102 L.Ed.2d 151 (1988). The Supreme Court has held that under the sixth amendment a criminal defendant has the right to waive his right to counsel and represent himself, provided that he knowingly, intelligently, and voluntarily elects to do so. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). “Because a defendant normally gives up more than he gains when he elects self-representation,” the district court is required to make “reasonably certain that he in fact wishes to represent himself.” Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989) (citing Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)). Under the law of this circuit, the first requirement in this process is that the request to forego the assistance of counsel be unequivocal. Adams, 875 F.2d at 1444; United States v. Smith, 780 F.2d 810, 811 (9th Cir.1986). The fact that some of Robinson’s statements of his preference to proceed pro se were accompanied by expressions of his feeling “forced” to do so does not render those statements equivocal. In Adams this court found that the defendant’s repeated" }, { "docid": "15070552", "title": "", "text": "PER CURIAM: Arnold N. Fant appeals his conviction for armed bank robbery, following a trial by jury during which he represented himself. The appellant’s principal contention is that the district court erred by failing to make an appropriate inquiry into whether the defendant’s request to proceed pro se was knowing and intelligent. Because we find sufficient evidence in the record to establish that the defendant’s election to waive his right to counsel and represent himself was knowing and intelligent, we affirm. A criminal defendant has a sixth amendment right to waive his right to counsel and proceed pro se as long as the decision is knowing, intelligent, and voluntary. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Greene v. United States, 880 F.2d 1299, 1303 (11th Cir.1989); Harding v. Davis, 878 F.2d 1341, 1343 (11th Cir.1989). In the Eleventh Circuit, a trial judge must hold a waiver hearing in order to “make the accused aware of the dangers and disadvantages of self-representation and establish a record that the accused ‘knows what he is doing and his choice is made with open eyes.’ ” Harding, 878 F.2d at 1343-44 (quoting Faretta, 422 U.S. at 835, 95 S.Ct. at 2525); Strozier v. Newsome, 871 F.2d 995, 997 (11th Cir.1989); see Greene, 880 F.2d at 1303; Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986). The court below failed to conduct a proper hearing. In a summary manner, the court merely warned the defendant of the dangers of proceeding pro se and recommended against it. This is not enough. The “ultimate test is not the trial court’s express advice, but rather the defendant’s understanding.” Greene, 880 F.2d at 1303-04; Strozier, 871 F.2d at 998; Fitzpatrick, 800 F.2d at 1065. The judge did not direct a single question at the defendant in an effort to ensure that his waiver was knowing, intelligent, and voluntary. Specifically, the trial judge erred in not inquiring into the defendant’s background and experience; his knowledge of the nature of the charges against him, possible defenses, and the possible penalty; his understanding of" }, { "docid": "22469437", "title": "", "text": "mean that he realized and had knowledge of all the implications and possible pitfalls of self-representation. Finally, the fact that Welty was, in the trial judge’s words, “an experienced litigant,” Def.App. at 13, cannot, without more, suffice to establish that Welty’s reluctant decision to proceed pro se — in the wake of the judge’s insistence that he decide “one way or the other now,” id. at 11 — was knowingly and intelligently made. There is no indication that Welty had ever represented himself during a trial before. In any event, we could not extrapolate from Welty’s participation or self-representation in other cases that he made a knowing and intelligent waiver of counsel in this case. Cf. United States v. Harrison, 451 F.2d 1013 (2d Cir. 1971) (per curiam) (holding that there was no intelligent waiver and not enough exploration by the trial judge even where the defendant was an attorney who professed familiarity with criminal law). Unless a criminal defendant knowingly and voluntarily waives his right to the assistance of counsel, it cannot be said that the requirements of the sixth amendment have been met. We recognize, of course, that in conducting an inquiry into waiver of counsel, the district court often is faced with a difficult task. Particularly this is so when the defendant, as is Welty here, is apparently street-wise and experienced in the litigation process and where friction has arisen between the defendant and his then-counsel. But the making of such inquiries and determinations is not unusual for a district court. Determinations of effective waiver, voluntariness, and the like, are routinely made in various contexts such as the taking of guilty pleas under Rule 11, see, e.g., United States v. Carter, supra, 619 F.2d at 299, and rulings with respect to confessions, see, e.g, Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967). We can expect no less of an inquiry here. Even at this late stage, we are unable to determine whether Welty truly understood the consequences of dismissing Pedicini and electing to represent himself. It is possible that had" }, { "docid": "2380174", "title": "", "text": "trial, we will reverse the district court’s denial only for an abuse of discretion and a showing of actual prejudice. United States v. Schwensow, 151 F.3d 650, 656 (7th Cir.1998), cert. denied, 525 U.S. 1059, 119 S.Ct. 626, 142 L.Ed.2d 565 (1998) (citation omitted). A district court’s denial of a defendant’s motion to compel the government to disclose favorable evidence will be reversed only upon a finding -of an abuse of discretion. United States v. Mitchell, 178 F.3d 904, 907 (7th Cir.1999). A. Avery’s Waiver Of His Sixth Amendment Right To Counsel In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court found that a criminal defendant is absolutely entitled to waive his right to the assistance of counsel and to proceed pro se when he voluntarily and intelligently elects to do so. Though he may ultimately conduct his own defense to his detriment, his choice must be honored as long as it is knowing and voluntary. Id. at 834, 95 S.Ct. 2525. “Although a defendant need not himself have the skill and experience of a lawyer in order [to] competently and intelligently choose- self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Id. at 835, 95 S.Ct. 2525, citing Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). When that is done, the defendant’s decision to proceed pro se will not be disturbed. To determine whether a defendant’s decision to represent himself is knowingly and voluntarily made, we consider (1) whether and to what extent the district court conducted a formal hearing into the defendant’s decision to represent himself, (2) whether, there is other evidence in the record that establishes that the defendant understood .the disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant’s decision to proceed pro se. Sandles, 23 F.3d at 1126; United States v. Bell," }, { "docid": "7090295", "title": "", "text": "is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings.” 509 U.S. at 401 n. 12, 113 S.Ct. 2680. A defendant is competent to waive counsel if he has the capacity to understand the nature and object of the proceedings against him. We are satisfied based on the testimony of Drs. Wolfson and Mitchell, our colloquy with Mr. Hammer on October 1, 1998, and our observations of him during the trial and that colloquy that Mr. Hammer is competent to discharge counsel, proceed pro se and decline to file an appeal within the statutory period. A finding that Mr. Hammer is competent is not, however, the end of the inquiry. Mr. Hammer’s decision to waive counsel, proceed pro se, and whether or not to appeal must be made knowingly, intelligently and voluntarily. The “knowingly and intelligently” aspect of the waiver of counsel only requires that the defendant “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (1975) (citation omitted). “Knowingly and intelligently” should not be confused with “wise.” As one court has noted The Constitution is a seamless web of rights and liberties — not conferred but guaranteed — against the intrusive, offensive, and sometimes paternalistic presence of Big Government. When a criminal defendant elects to stand at the Bar in his own defense, and he does so knowingly, voluntarily, and unequivocally, the court is bound by the Constitution to honor that election, however suicidal it may appear to be. Johnstone v. Kelly, 633 F.Supp. 1245, 1248 (S.D.N.Y.1986)(Brieant, J.), rev’d on other grounds, 808 F.2d 214 (2d Cir.1986), cert. denied, 482 U.S. 928, 107 S.Ct. 3212, 96 L.Ed.2d 699 (1987). In order for a defendant’s waiver of counsel to be voluntary, it must be uncoerced. Godinez, 509 U.S. at 401 n. 12, 113 S.Ct. 2680. A defendant should unequivocally request self-representation, rather than claim such a course of conduct has been thrust upon" }, { "docid": "8516473", "title": "", "text": "affirmatively to relinquish the right to counsel, it follows that the right of self-representation must affirmatively be asserted as well. We thus have emphasized that courts should not bend over backward to hold that a defendant, who merely hints that he might be better off representing himself, has waived his right to counsel. Cf. Brewer v. Williams, 430 U. S. 387 (1977) (mere failure to request counsel does not result in waiver of right to counsel). These precautions, which are so necessary to protect the right to counsel, may not be permitted to eviscerate the right of self-representation. Just as we must be watchful not to find a waiver of the right to counsel where none was intended, so must we be cautious not to overlook an asserted right to proceed pro se in our well-meant effort to protect the right to counsel. Accordingly, in Faretta we indicated that a defendant’s clear and unequivocal assertion of a desire to represent himself must be followed by a hearing, in which he is “made aware of the dangers and disad vantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Faretta, 422 U. S., at 835. A Faretta hearing offers a court ample opportunity to assure that a defendant understands and accepts the consequences of his decision, and to create a record to support its finding of a knowing waiver. As a result, once a defendant affirmatively states his desire to proceed pro se, a court should cease other business and make the required inquiry. It is through this hearing that the right to counsel is protected. holds The foregoing makes clear, then, that if a trial court judge holds a Faretta hearing when the accused clearly asserts his desire to proceed pro se, the result will not do harm to the right to counsel. At the same time, the failure to hold a Faretta inquiry at this time will do injury to the right recognized in Faretta. Delay in holding a hearing after the right is unequivocally" } ]

[ { "docid": "23420343", "title": "", "text": "postponement of trial would be necessary. The court reasoned that: The interests of fairness and justice to both parties are best served at this stage of the case by avoiding the additional discovery and trial preparation which the different causes of action would require. The additional causes of action which the plaintiffs seek to include by this amendment do not represent new areas of the law that could not have been developed further and incorporated into this cause of action at an earlier date. It would thus appear that the trial court was of the opinion that there had been ample time for the plaintiffs to develop the concepts and theories embodied in the amended complaint since they did not represent new areas of the law. It cannot be said, therefore, that the trial court acted in an unreasonable or arbitrary manner. The original complaint after all did allege a breach of fiduciary duty. Admittedly leave to amend is to be given freely, but this does not mean that it can go on indefinitely. The action of the court was proper. IX. WHETHER IT WAS ERROR TO DIRECT A VERDICT ON THE CLAIMS OF PLAINTIFF HILTON The contention of the plaintiffs on this was that the 25% limitation with respect to the sale or other disposition of the stock as contained in paragraph 2(p) of the Exchange Agreement was not violated by the plaintiff Hilton and the court was therefore in error in holding that the 25% transfer was at odds with the Exchange Agreement. What Hilton did was to convey in excess of 25% of his Transamerica stock to a revocable trust for his children. He conveyed to other entities as well. Paragraph 2(p) provides as follows: Each of the Shareholders represents and warrants to Transamerica that the Trans-america common stock to be acquired by him in the exchange provided for in this agreement will be acquired by him for his own account for the purpose of investment and not with a view to resale or other disposition of all or any portion thereof, and that in order to" } ]

[ { "docid": "13362431", "title": "", "text": "Inc. terminated TLS’s services, and the client’s president, Jay Harris, requested that his membership interest in TLS be assigned to Sandpiper LLC, a company where Rodriguez is an “authorized person.” Id. ¶¶ 83, 84. At least two other clients of TLS also terminated their service agreements and requested that their membership interests in TLS be transferred to companies' in which Rodriguez is listed as an “authorized person.” Id. ¶¶ 85-90. DISCUSSION, Defendants contend that the amended complaint fails to state a claim under either Titles I or II of the ECPA, and that supplemental jurisdiction should not be exercised over the state-law claims. Docket Nos. 78, 79, 100. TLS maintains that the amended complaint adequately alleges a claim under both Titles I and II of the ECPA, and that the court should exercise ancillary jurisdiction over the related local-law claims. Docket No. 111. I. Stored Communications Act The complaint alleges that all defendants violated the Stored Communications Act (“SCA”). 18 U.S.C. §§ 2701-2712; Am. Compl. ¶ 93. The SCA is also known as Title II of the ECPA, “which was enacted in 1986 ‘to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.’” Telecomms. Regulatory Bd. of P.R. v. CTIA-Wireless Ass’n, 752 F.3d 60, 64 (1st Cir. 2014) (quoting S. Rep. No. 99-541, at 1-2 (1986)). Title II of the ECPA “creates civil liability for one who ‘(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.’ ” Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 114 (3d Cir. 2003) (quoting 18 U.S.C. § 2701(a)); see also Jewel v. NSA, 673 F.3d 902, 912 (9th Cir. 2011) (“Congress ... spelled out a private right of action in the ... SCA”). A claim arising under the SCA is subject to certain statutory exceptions, 18 U.S.C. §§ 2701(c)(l)-(3), and “virtually complete immunity” extends" }, { "docid": "13362454", "title": "", "text": "jurisdiction that they form part of the same case or controversy”)). Each of the state-law claims in the amended complaint “arise from the same nucleus of operative facts” as the federal claims, and so supplemental jurisdiction will be exercised over those claims. Thus, TLS’s claims arising under Puerto Rico law are not dismissed. CONCLUSION For the foregoing reasons, the motions to dismiss are GRANTED IN PART AND DENIED IN PART. The SCA claims against all defendants are DISMISSED. All claims against Cardona are DISMISSED. The Wiretap Act and state-law claims remain. IT IS SO ORDERED. . The amended complaint alleges: violation of the Puerto Rico Commercial and Industrial Trade Secret Protection Act, P.R. Laws Ann. tit. 10 §§ 4131-4141; breach of contract, in violation of Articles 1044, 1054, 1077 and 1206 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 §§'2994, 3018, 3052, 3371; conversion, in violation of Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141; and tortious interference with various contracts, in violation of Article 1802 of the Puerto Rico Civil Code; P.R. Laws Ann. tit. 31, § 5141. . The parties voluntarily agreed to dismiss without prejudice the claims against Global Tax Strategy, the alleged Rodriguez-Ramos conjugal partnership, and Sandpiper LLC. Docket Nos. Í17, 126. . This narrative is based on the well-pleaded allegations in the amended complaint. Docket No. 74. . Dropbox \"is a cloud .storage product that allows a user to create an account to save and store digital content, including images and videos, in folders, and to share that content by providing others with the email address and password used to log in to the account.” United States v. Wilson, 217 F.Supp.3d 165, 169 (D.D.C. 2016). . Santo Domingo became an advisor at TLS in February 2013. Id. ¶¶ 52-54. Before commencing his employment with TLS, Santo Domingo signed a confidentiality and non-competition, agreement that included confidentiality provisions identical to the ones in the Subcontractor Agreement executed by Rodriguez. Id. ¶¶ 52-54. . It is unclear from the allegations in the amended complaint whether the computer" }, { "docid": "13362424", "title": "", "text": "defendants and state a facially plausible legal claim.” Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). To do so, the complaint must set forth “factual allegations, either direct or inferential, regarding each material element necessary” for the action. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). When evaluating the complaint, the court first discards any “‘legal conclusions couched as fact’ or ‘threadbare recitals of the elements of a cause of action.’” Ocasio-Hernández, 640 F.3d at 12 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The remaining “[n]on-conclusory factual allegations” are fully credited, “even if seemingly incredible.” Ocasio-Hernández, 640 F.3d at 12. The court engages in no fact-finding when considering the motion, and does not “forecast a plaintiffs likelihood of success on the merits.” Id. at 13. Rather, the court presumes that the facts are as properly alleged by the plaintiff, and draws all reasonable inferences in the plaintiffs favor. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). BACKGROUND TLS is a Puerto Rico limited liability company that employs tax lawyers, tax accountants, and business executives to provide tax planning and consulting services.- Am. Compl. ¶¶ 11, 24. TLS has developed tax strategies, insurance strategies, customer lists, and other confidential information, and has- stored that information on an online business account at the domain name “Dropbox.com” (“Drop-box”). Id. ¶¶ 60, 61. TLS’s Dropbox is for the “exclusive use” of its employees, and Dropbox requires a business account to be used “in compliance -with” an employer’s “terms and policies.” Id. ¶¶ 60, 75. ASG employs certified public accountants and offers, among other things, tax planning and- tax preparation services. Id. ¶26. Rodriguez previously served as the “principal director” for ASG, while Ramos remains a “principal” for this company. Id. ¶¶ 13, 27, 65. In March 2012, TLS offered Rodriguez the .company’s, “finance director” .position, subject to his execution of a confidentiality and nondisclosure agreement. Id. ¶¶ 12,28. Rodriguez accepted the offer, and was set to start the new position in August 2012." }, { "docid": "13362423", "title": "", "text": "OPINION AND ORDER BRUCE'J. McGIVERIN, United States Magistrate Judge' Alleging violations of Titles I and II of the Electronic Communications Privacy Act (“ECPA”) and various Puerto Rico statutes, TLS Management and Marketing Services ]LLC (“TLS”) brought this action against Ricky Rodriguez-Toledo (“Rodriguez”), Lorraine Ramos (“Ramos”), the alleged conjugal partnership between Rodriguez and Ramos, Miguel A. Santo Domingo-Ortiz (“Santo Domingo”), Mari Lourdes Cardona-Jimenez (“Cardona”), the Santo Domingo-Cardona conjugal partnership, ASG- Accounting Solutions Group, Inc. (“ASG”), Global Outsourcing Services LLC (“GOS”), Global Tax Strategy, Sandpiper LLC, and three unidentified insurance companies. Docket No. 74 (“Am. Compl.”). Defendants moved to dismiss the amended complaint for failure to state a claim, Docket. Nos. 78, 79, 98-100, and TLS opposed. Docket No. 111. The case is before me on consent of the parties. Docket No. 93. For the reasons set forth below, the motions to dismiss are GRANTED IN PART AND DENIED IN PART. MOTION Tp DISMISS STANDARD To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “an adequate complaint must provide fair notice to the defendants and state a facially plausible legal claim.” Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). To do so, the complaint must set forth “factual allegations, either direct or inferential, regarding each material element necessary” for the action. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988). When evaluating the complaint, the court first discards any “‘legal conclusions couched as fact’ or ‘threadbare recitals of the elements of a cause of action.’” Ocasio-Hernández, 640 F.3d at 12 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The remaining “[n]on-conclusory factual allegations” are fully credited, “even if seemingly incredible.” Ocasio-Hernández, 640 F.3d at 12. The court engages in no fact-finding when considering the motion, and does not “forecast a plaintiffs likelihood of success on the merits.” Id. at 13. Rather, the court presumes that the facts are as properly alleged by the plaintiff, and draws all reasonable inferences in the plaintiffs favor. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st" }, { "docid": "22588652", "title": "", "text": "agreement which distinguished assets “in the hands of the trustee hereunder constituting principal” from the income thereon. The agreement likewise indicated that the trustee was paying over net income amounts on Commonwealth Marine’s order. The district court, therefore, found nothing to justify the averred understanding of Mamiye’s counsel that Fidelity commingled interest with the trust principal. This appeal timely followed the court’s final order. We possess jurisdiction pursuant to 28 U.S.C. § 1291 (1982). II. The plaintiff presents us with three issues on appeal. First, Mamiye contends that the district court erred in denying Mamiye’s motion for summary judgment. Second, Mamiye attacks the district court’s grant of summary judgment in favor of Fidelity. Third, the plaintiff claims that the district court abused its discretion in denying the motion for leave to amend the complaint. On review of the district court’s grant of summary judgment, we likewise examine whether “no genuine issue as to a material fact remains for trial, and matter of law.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). In applying the law to undisputed facts, our review is plenary. Koshatka v. Philadelphia Newspapers, Inc., 762 F.2d 329, 333 (3d Cir.1985). We may reverse the district court’s refusal to permit the plaintiff to amend its complaint if the court abused its discretion with respect to the liberal standard of Fed.R.Civ.P. 15(a). Adams v. Gould Inc., 739 F.2d 858, 863 (3d Cir.1984), cert. denied, 469 U.S. 1122, 105 S.Ct. 806, 83 L.Ed.2d 799 (1985). III. We turn first to the question of whether the district court improperly denied the plaintiff leave to amend its complaint since, as we have noted, the court appeared to consider the amended complaint in ruling upon the parties’ cross-motions for summary judgment. The standards governing review of a district court’s denial of a motion to amend a complaint are well-established. In Adams v. Gould Inc., 739 F.2d at 864, we observed: Fed.R.Civ.P. 15 embodies the liberal pleading philosophy of the federal rules. Under Rule 15(a), a complaint may" }, { "docid": "6169077", "title": "", "text": "The court will, therefore, treat the Department’s shift in arguments as a motion to amend its Answer. Rule 15 outlines a very liberal policy of allowing amendments. A trial court should generally not deny a request to amend, even at the summary judgment stage, unless the court finds that there was bad faith, undue delay or prejudice. Adams v. Gould Inc., 739 F.2d 858, 869 (3d Cir. 1984). Further, most circuits have held that delay alone is an insufficient reason to deny a motion to amend. Hayes v. New England Milhuork, 602 F.2d 15 (1st Cir.1979). On the other hand, it is well within the court’s discretion to deny a motion to amend when prejudice results. Id. The First Circuit has held that “[P]arties seeking the benefit of the rule’s liberality have an obligation to exercise due diligence; unseemly delay, in combination with other factors, may warrant a denial of suggested amendment.” Quaker State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517 (1st Cir.1989). Further, while leave to amend “shall be freely given when justice so requires,” it may be denied “in the face of extraordinai'ily long and essentially unexplained delay.” Andrews v. Bechtel Power Corp., 780 F.2d 124, 138 (1st Cir.1985), cert. denied, 476 U.S. 1172, 106 S.Ct. 2896, 90 L.Ed.2d 983 (1986). See also Berger v. Edge-water Steel Co., 911 F.2d 911 (3d Cir.1990) (Trial court did not abuse discretion in denying Plaintiffs motion to amend complaint when the amendment would have injected new issues into the case requiring extensive discovery, when the motion came almost five months after information on which it was based became available and after the close of discovery); Coonce v. Aetna Life Ins., Ill F.Supp. 759 (W.D.Mo.1991) (ERISA medical plan participant not allowed to amend complaint to add claims involving matters that were known to the participant at the time she filed the action; there was no excusable reason why the claims were not included in the original complaint). The court will not decide this issue at this time. Suffice to say, the Departments’ Motion for Partial Summary Judgment is" }, { "docid": "23099844", "title": "", "text": "Moore’s Federal Practice, ¶ 15.08 at 15.76). At least one Sixth Circuit decision has held that allowing amendment after the close of discovery creates significant prejudice, and other Circuits agree. Moore, 790 F.2d at 560 (citing with approval Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15 (1st Cir.1979)). See also Campbell v. Emory Clinic, 166 F.3d 1157 (11th Cir.1999); MacDraw, Inc. v. CIT Group Equip. Financing, Inc., 157 F.3d 956 (2d Cir.1998); Ferguson v. Roberts, 11 F.3d 696 (7th Cir.1993); Averbach v. Rival Mfg. Co., 879 F.2d 1196 (3rd Cir.1989). In this case, the district court named both undue delay in missing deadlines and undue prejudice to the opponent in allowing amendment after the close of discovery in coming to its decision. The plaintiff was obviously aware of the basis of the claim for many months, especially since some underlying facts were made a part of the complaint. Plaintiff delayed pursuing this claim until after discovery had passed, the dispositive motion deadline had passed, and a motion for summary judgment had been filed. There appears to be no justification for the delay, and the plaintiff proposes none. Allowing amendment at this late stage in the litigation would create significant prejudice to the defendants in having to reopen discovery and prepare a defense for a claim quite different from the sex-based retaliation claim that was before the court. The district court did not abuse its discretion in denying leave to amend the complaint at such a late stage of the litigation. For the foregoing reasons, the district’s denial of leave to amend the complaint is AFFIRMED. III. Finally, defendants Steak ’N Shake and Consolidated Products, Inc. c^oss-appeal for dismissal and for attorney’s fees and sanctions against Duggins’s previous counsel, Morganroth & Morganroth, based on the arguments that this litigation is the fruit of the unauthorized practice of law and that the Morganroth firm failed to properly control the acts of James Estep while he was acting as Morganroth’s agent. The district court did not address the defendants’ previous motion on this matter due to its determination that summary judgment" }, { "docid": "13362427", "title": "", "text": "of the Subcontractor Agreement. Id. ¶ 36. In July 2012, Rodriguez requested that he be allowed to commence employment with TLS in September 2012, and agreed to extend the Subcontractor Agreement until the beginning of that month. Id. ¶ 41. In August 2012, TLS offered Rodriguez a different position: he was offered the company’s “managing director” position, so long as he signed a confidentiality and nondisclosure agreement. Id. ¶ 42. Rodriguez’s nondisclosure agreement prohibited him from disclosing confidential information (which was defined broadly to include things like TLS’s “business methods” and “clients or prospective clients”), and required him to notify TLS of any disclosure of confidential information. Id. ¶¶ 45, 47. Rodriguez accepted the offer, and agreed to begin working as TLS’s managing director in early September 2012. Id. ¶42. As the managing director, Rodriguez was issued a laptop, TLS e-mail account, and other equipment. Id. ¶50. Alleged Unauthorized Access & Copying Between February 2014 and January 2015, Rodriguez allegedly copied TLS’s confidential information and allowed others to do the same. Id. ¶¶ 2-4, 58, 67-78. Some of this copying required access to TLS’s Dropbox, and Rodriguez allegedly allowed others to access the Dropbox in his capacity as the “administrator” of the Dropbox account. Id. ¶¶ 2-4, 58, 67-78. The amended complaint identifies several incidents. First, in February 2014, Rodriguez “linked a device” owned by Ramos to TLS’s Drop-box, and Ramos accessed the Dropbox sometime thereafter. Id. ¶¶4, 67. Ramos has never been an employee of TLS, and Rodriguez was not authorized to give Ramos access to the Dropbox. Id. ¶¶ 67, 76. And before he resigned from TLS, Rodriguez attempted to delete Ramos as a user of TLS’s Dropbox. Id. ¶ 67. He also unlinked Ramos’s device from TLS’s Drop-box, which prevented TLS from remotely wiping the data transferred to Ramos’s device. Id. ¶ 67. Rodriguez’s Dropbox log revealed that he linked several persons to TLS’s Drop-box account. Id. ¶ 74. Rodriguez was not authorized to obtain information from Dropbox for purposes other than his duties as TLS’s consultant and managing director. Id. ¶76. Yet, between April and August" }, { "docid": "2213212", "title": "", "text": "District Court had accepted several rounds of briefs from both parties regarding the mootness question, as well as after Waterfront’s motion to amend its Complaint to assert claims against the CRO. The District Court denied the motion, reasoning that Waterfront had “engaged in undue delay” in asserting a challenge to a restriction that had been in existence since the lawsuit was filed, and that the proposed change would prejudice the City because it constitutes “a change to [Waterfront’s] theory of liability.” Waterfront III, 2011 WL 857294, at *6 (citations omitted). Waterfront vigorously attacks the District Court’s denial of its motion for leave to amend. We have considered each of Waterfront’s contentions, and reject them for the reasons that follow. A district court’s decision to deny a motion for leave to amend a complaint under Rule 15(a)(2) is reviewed for abuse of discretion. See, e.g., Estate of Oliva v. New Jersey, 604 F.3d 788, 803 (3d Cir.2010). The motion should be granted “when justice so requires.” Fed.R.Civ.P. 15(a)(2). We are mindful that the pleading philosophy of the Rules counsels in favor of liberally permitting amendments to a complaint. Adams v. Gould Inc., 739 F.2d 858, 864 (3d Cir.1984). The motion is nevertheless committed to the “sound discretion of the district court.” Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir.2001). Waterfront makes much of our statement that “prejudice to the nonmoving party is the touchstone for the denial of the amendment.” Dole v. Arco Chem. Co., 921 F.2d 484, 488 (3d Cir.1990) (citation omitted). Waterfront argues that the proposed amendment would not prejudice the City in that Waterfront would seek no further discovery with respect to the new claim and that the District Court abused its discretion because it made no finding that the amendment would cause the City discovery-related prejudice. Waterfront’s arguments ignore that discovery-related prejudice is not the only prejudice that may justify denial of a motion for further leave to amend a pleading. We have also explained that a significant, unjustified, or “undue” delay in seeking the amendment may itself constitute prejudice sufficient to justify" }, { "docid": "6169076", "title": "", "text": "this issue appear to apply Rule 8(d) as a punitive measure. The Fifth Circuit noted in Sinclair that the resultant loss of plaintiffs opportunity to develop a record on the “admitted” issue “illustrate[s] the wisdom of the rule in requiring issues to be clearly drawn.” In the instant case, Plaintiff has already conducted depositions and the parties are preparing for trial. Here, Plaintiff conducted his discovery under the impression that the Department did not deny the fact that witnesses were properly requested. The Department’s sudden change in position creates a substantial issue of fact that cries for adequate .discovery. The court is of the impression that the Plaintiff has been greatly prejudiced by the Department’s inconsistencies. Plaintiff has been deprived of the opportunity to depose many of the personnel involved. As to those depositions conducted, the Plaintiff had no indication that this very important issue was in dispute and, therefore, would not have pursued this line of questioning. The resolution of this issue should probably be guided by Federal Rule 15(a) governing amendments to pleading. The court will, therefore, treat the Department’s shift in arguments as a motion to amend its Answer. Rule 15 outlines a very liberal policy of allowing amendments. A trial court should generally not deny a request to amend, even at the summary judgment stage, unless the court finds that there was bad faith, undue delay or prejudice. Adams v. Gould Inc., 739 F.2d 858, 869 (3d Cir. 1984). Further, most circuits have held that delay alone is an insufficient reason to deny a motion to amend. Hayes v. New England Milhuork, 602 F.2d 15 (1st Cir.1979). On the other hand, it is well within the court’s discretion to deny a motion to amend when prejudice results. Id. The First Circuit has held that “[P]arties seeking the benefit of the rule’s liberality have an obligation to exercise due diligence; unseemly delay, in combination with other factors, may warrant a denial of suggested amendment.” Quaker State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517 (1st Cir.1989). Further, while leave to amend “shall be freely" }, { "docid": "4225383", "title": "", "text": "F.2d 169, 176 (1st Cir.1978), vacated on other grounds, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (per curiam), and it “must be careful not to deprive a party of discovery that is reasonably necessary to afford a fair opportunity to develop and prepare the case”, Fed.R. Civ.P. 26(b) advisory committee notes to 1983 amendment. IV. AMENDMENT OF THE COMPLAINT Isaac filed his original complaint on June 24, 1980. Nearly four years later, after a pretrial conference had been scheduled, he moved for leave to amend to add state law claims for fraud, breach of contract and violation of the Massachusetts Constitution. The district court denied the motion, apparently on the bases of both undue delay and prejudice to the defendant, and Isaac now appeals only the refusal to allow addition of the contract claim. That claim is, in essence, that Isaac’s appointment as Associate Professor in 1971 carried with it an implied promise of tenure. Leave to amend a pleading under Fed.R. Civ.P. 15(a) is a matter within the discretion of the trial court, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Serrano Medina v. United States, 709 F.2d 104, 106 (1st Cir.1983); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 896 (1st Cir.1979), and an order denying leave to amend will be reversed only for an abuse of that discretion, Serrano Medina, 709 F.2d at 106; Johnston v. Holiday Inns, 595 F.2d at 896. We find no such abuse in this case. Isaac offered no reason for the four-year delay in asserting his contract claim and, as the district court noted, it could not be that this claim was newly discovered “since the plaintiff is alleged to be a party to [the] conversations” on which the claim is based. “While courts may not deny an amendment solely because of delay and without consideration of the prejudice to the opposing party, ... it is clear that ‘undue delay’ can be a basis for denial[.]... And where, as here, a considerable period of time has passed between" }, { "docid": "22281780", "title": "", "text": "abused its discretion. See Appeal of Sun Pipe Line Company, 831 F.2d at 25; Binkley Company v. Eastern Tank, Inc., 831 F.2d at 337; see also Adams v. Gould Inc., 739 F.2d 858, 864 (3d Cir.1984), cert. denied, 469 U.S. 1122, 105 S.Ct. 806, 83 L.Ed.2d 799 (1985); Huff v. Metropolitan Life Ins. Co., 675 F.2d at 122; 6A J. Moore & J. Lucas, Moore’s Federal Practice ¶ 59.15[4], at 311 (2d ed.1989). This abuse of discretion standard honors the firmly established policy of deference to trial court fact-finding. Accordingly, we shall review the trial court’s factual amendments and the reversal of its initial judgment in favor of National only for abuse of discretion. There is no such abuse if the trial record supports the amendments to the findings of fact and conclusions of law. Cf. United States Gypsum Co. v. Schiavo Bros., 668 F.2d at 180 (“Where a new trial is not ordered, the trial record must support whatever additional findings of fact or conclusions of law a party seeks under Rule 52(b) or it is certainly not entitled to them.”). Phrased another way, unless we find the second opinion to have been clearly erroneous in its findings, the courts second judgment must be upheld. IV. FACTUAL ANALYSIS In its initial opinion, the district court held that an implied contract had been formed between National and Bar-clays whereby Barclays unconditionally agreed to pay Brisas’ fan plating bills. The court stated that under Massachusetts law relating to implied contracts, “so long as Barclays acted in a way that appeared that it agreed [to pay Brisas’ expenses unconditionally] and National reasonably relied on the appearance of the agreement, there was an agreement between the two.” The court found such an agree ment, based primarily on its determination that Barclays had never made clear to National that any agreement by it to send payments to National was conditioned on the sufficiency of the accounts receivable assigned to Barclays by Brisas. In its second opinion, the district court reconsidered this finding and changed its mind, holding that Barclays had made sufficiently clear the" }, { "docid": "22878001", "title": "", "text": "to trial with the plaintiffs relying on one legal theory, only to have the plaintiffs try to change that theory in order to retry the same facts. They also have not obtained judgment on the merits of plaintiffs’ new theory; the district court did not rule on that theory, and we specifically declined to address any other issues other than the one certified by the district court. Neither is there anything on the facts of this case which demonstrates any particular prejudice as a result of allowing the plaintiffs to amend their complaint at this point in the proceedings. See, e.g., Serrano Medina v. United States, 709 F.2d 104 (1st Cir.1983) (eleventh-hour amendment adding new parties under conspiracy theory which would require extensive additional discovery would be prejudicial to defendants); DeBry v. Transamerica Corp., 601 F.2d 480 (10th Cir.1979) (where plaintiff seeks to amend complaint to assert “new concepts and theories” that would require extensive additional discovery and create risk that trial scheduled for three months hence will have to be delayed, allowing amendment would be prejudicial to defendant). In light of the procedural posture of this case at the time of judgment and the failure of defendants to specify any particular prejudice, we hold that the defendants are not prejudiced by the plaintiffs’ attempt to amend their complaint in order to assert a new legal theory at this point in the litigation. Since we have concluded that the district court was not justified in rejecting the plaintiffs’ motion for leave to amend their complaint by undue delay, bad faith on the part of the plaintiffs, or prejudice to the defendants, we cannot hold that the decision to deny leave to amend was within the discretion of the district court. Accordingly, the district court erred in not allowing the plaintiffs to reopen the judgment and in not granting them leave to amend their complaint. V. In sum, we hold that: (1) the plaintiffs’ complaint states a Vaca v. Sipes cause of action against Gould for failure to comply with an arbitrator’s award to make additional contributions to a pension plan;" }, { "docid": "23561264", "title": "", "text": "(1) a declaratory judgment that the January 14, 1994 unsigned letter is a binding agreement between Fax and AT&T; (2) specific performance of that contract; and (3) a declaratory judgment that AT&T contracted to install the Tl pipe. In the alternative, Fax sought compensatory and punitive damages based on AT&T’s breach of contract, fraudulent inducement to contract, and fraudulent misrepresentation. On November 18, 1994, AT&T removed the action to the United States District Court for the Eastern District of New York, claiming federal question jurisdiction under the FCA. After answering and counterclaiming for payment of Fax’s past-due balance, AT&T moved for summary judgment, pursuant to Fed.R.Civ.P. 56, dismissing Fax’s claims and in favor of AT&T’s counterclaims. The district court granted AT&T’s motion, except that it refused to dismiss Fax’s claim that AT&T breached its contract to install the Tl pipe. AT&T consented to judgment on that issue, and the district court awarded judgment of $3,140 plus pre-judgment interest to Fax. Fax appeals from the remainder of the district court’s judgment, dismissing its remaining claims and awarding damages of $2,321,-390.71 plus pre-judgment interest to AT&T. At oral argument, we asked the parties to submit supplemental briefs regarding the basis for subject matter jurisdiction, whether administrative remedies were available to Fax, and the applicability of the doctrine of primary jurisdiction. On November 7, 1997, AT&T submitted a supplemental brief; Fax responded by letter brief on November 20, 1997. DISCUSSION III. Standard of Review We review the grant of summary judgment de novo. Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 100 (2d Cir.1997). In doing so, we “view the evidence in the light most favorable to the party opposing summary judgment.” Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir.1995). The “ ‘mere existence of some alleged factual dispute ... will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.’ ” Davidson v. Scully, 114 F.3d 12, 14 (2d Cir.1997) (emphasis in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct." }, { "docid": "7880160", "title": "", "text": "for leave to amend her complaint, which asserted only federal claims, to show supplementally her discharge by City, to request reinstatement and other relief, and to add two nonfederal causes of action. This effort came more than fourteen months after filing of the complaint and more than a year after the discharge, but less than two months before the trial date and shortly before the close of discovery; and the motion did not attempt to explain the long delay. See A.App. 32. The District Court denied the motion on the ground that it could have been made much earlier and thus could have avoided the need to reopen discovery and postpone the trial. Vinson v. Taylor, Civ. No. 78-1793 (D.D.C. Jan. 8, 1980) (memorandum) at 1-2, A.App. 54-55. Vinson’s assignment of this ruling as error is not well taken. While leave to amend must \"be freely given when justice so requires,” Fed.R.Civ.P. 15(a), a grant of the motion here would have subjected the defendants to the burden of additional discovery, preparation and expense, thereby prejudicing their right to a prompt and inexpensive trial. In these circumstances, we cannot say that the court’s action was an abuse of discretion. See Serrano Medina v. United States, 709 F.2d 104, 106 (1st Cir.1983); PSG Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 417 F.2d 659, 664 (9th Cir.1969), cert. denied, 397 U.S. 918, 90 S.Ct. 924, 25 L.Ed.2d 99 (1970); DeBry v. Transamerica Corp., 601 F.2d 480, 492 (10th Cir.1979). We intimate no view on the disposition to be made should Vinson renew the motion on remand of this case. . Vinson v. Taylor, supra note 3, 23 Fair Empl.Prac.Cas. (BNA) at 38. This court was not furnished a complete transcript of the proceedings at trial. Citations, therefore, are to the District Court’s opinion rather than to the trial record. . Id. . Id. . Id. . Id. at 38-39 n. 1. Appellant challenges this ruling on appeal, Brief for Appellant at 37, and later we address it. See text infra at notes 39-41. . Vinson v. Taylor, supra note 3, 23" }, { "docid": "13362440", "title": "", "text": "In re Hawaiian Airlines, Inc., 401 Fed.Appx. 242, 243 (9th Cir. 2010). This being the case, the lower court and the Ninth Circuit determined that there was no liability under the SCA when Davis accessed Konop’s website using Gardner’s password. Id. The allegations in the amended complaint state that “Dropbox is a facility through which an electronic communication service is provided.” Am. Compl. ¶ 100. It is further alleged that Rodriguez “was granted access to TLS’s business Dropbox account, where the” confidential information was stored, and that Rodriguez accessed the Dropbox in February 2014, Id. ¶¶ 51, 67. These allegations establish that Rodriguez was a “user” of TLS’s Dropbox. See 18 U.S.C. § 2510(13). Moreover, the amended complaint also alleges that Rodriguez, via his capacity as administrator, allowed Ramos and Santo Domingo to access TLS’s Dropbox. Am. Compl. ¶¶ 113,117. Even assuming that TLS is correct in arguing that the access given to Santo Domingo and Ramos was “without authorization,” this alleged conduct falls within the statutory exception of § 2701(c)(2) because — as in Konop and Hawaiian Airlines — Rodriguez, who was an authorized user of the Dropbox, allowed Ramos and Santo Domingo to view a communication “intended for” a user of the electronic communication service. See 18 U.S.C. § 2701(c)(2). Similarly, Rodriguez did not incur liability under the SCA by allowing others to access the Dropbox because the face of the amended complaint reveals that he was an authorized user of the Dropbox. See Konop, 302 F.3d at 880 (“the district court [correctly] concluded that Wong and Gardner had the authority under § 2701(c)(2) to consent to Davis’ use of the website because Konop put Wong and Gardner on the list of eligible users.”) (emphasis added). Because the allegations necessary to determine whether the statutory exception is applicable appear on the face of TLS’s amended complaint, the SCA claims against Santo Domingo, Ramos, and Rodriguez are dismissed. See In re Doubleclick Inc. Privacy Litig., 154 F.Supp.2d at 507 (court concluded that communications accessed by defendant fell “under § 2701(c)(2)’s exception,” that the claim was thus “outside Title II”" }, { "docid": "20492325", "title": "", "text": "eventually cited problems with the 6500 and slowed or ceased purchases of it, that did not occur until months after No-* tebaert made the statements that plaintiffs characterize as misrepresentations. Compare JX 42 at TL ERISA 8723; JX 1 TLERISA at 2161795; JX 8.2 at TL-ERISA at 274254; and PX 66 at TL-ERISA at 60628, with PX 118 TL-ERISA 267254; PX 57 at TL-ERISA 666912-13; and PX 63 at TL-ERISA at 645233. A notable example of this was when Verizon cut its expected 6500 order from sixty-seven to eleven units in May 2001. About the same time, internal communications reflected that sales of the 6500 were coming in slower than expected. Plaintiffs also presented some evidence that the 6500 was having manufacturing, production, and testing problems. Tellabs recognized revenue for the first 6500 at Sprint in the second quarter of 2001, after Sprint completed successful operation and formal acceptance of a 6500 system that it had been testing. It was not until September 2001, however, that Tellabs satisfied the rules allowing recognition of revenue on shipped 6500 systems without successful operation and formal acceptance of each such system. Though true, these facts do not make defendants’ statements about the 6500 misrepresentations. As noted above, Verizon, Sprint, and other customers continued to express interest in the 6500. Moreover, the fact that revenue could not be recognized at the time of sale due to accounting rules did not mean that there was low demand for the product. Another alleged misrepresentation concerned the announcement on December 11, 2000 of an agreement with Sprint for sale of the new 6500 product. Tellabs issued a press release stating that “Tellabs announced a multiyear agreement with Sprint for the TITAN® 6500.... The agreement is expected to be valued at more than $100 million over the life of the contract.” Sprint approved the press release before Tellabs issued it. The press release contained a quote about the 6500 from a Sprint vice president. Plaintiffs contend that this announcement was a misrepresentation because no contract regarding the 6500 had been signed as of that date between Sprint and" }, { "docid": "13362455", "title": "", "text": "1802 of the Puerto Rico Civil Code; P.R. Laws Ann. tit. 31, § 5141. . The parties voluntarily agreed to dismiss without prejudice the claims against Global Tax Strategy, the alleged Rodriguez-Ramos conjugal partnership, and Sandpiper LLC. Docket Nos. Í17, 126. . This narrative is based on the well-pleaded allegations in the amended complaint. Docket No. 74. . Dropbox \"is a cloud .storage product that allows a user to create an account to save and store digital content, including images and videos, in folders, and to share that content by providing others with the email address and password used to log in to the account.” United States v. Wilson, 217 F.Supp.3d 165, 169 (D.D.C. 2016). . Santo Domingo became an advisor at TLS in February 2013. Id. ¶¶ 52-54. Before commencing his employment with TLS, Santo Domingo signed a confidentiality and non-competition, agreement that included confidentiality provisions identical to the ones in the Subcontractor Agreement executed by Rodriguez. Id. ¶¶ 52-54. . It is unclear from the allegations in the amended complaint whether the computer at issue was Rodriguez’s personal computer or a TLS-issued computer. See id. ¶ 59. , The SCA claims against ASG, GOS, Cardo-na, and the Santo Domingo-Cardona conjugal partnership are tied to the conduct of Rodriguez, Ramos, and Santo Domingo, and so those SCA claims are also dismissed. See Am. Compl. ¶¶ 16, 122. Cardona also argues that the amended complaint fails to allege any specific conduct for which she is liable. Docket No. 98. Because the amended complaint makes only cursory references to Cardona and fails to allege any specific conduct for which she is liable, all claims against her are dismissed." }, { "docid": "7198148", "title": "", "text": "and actual trial might require several years); A. Cherney Disposal Co. v. Chi. & Suburban Refuse Disposal Corp., 68 F.R.D. 383, 385-86 (N.D.Ill.1975) (finding prejudice and denying amendment where the proposed amendment was requested five years after the case was filed, required further discovery, and substantially changed the complaint). “In determining what constitutes prejudice, the Court considers whether the assertion of the new claim would (1) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (2) significantly delay the resolution of the dispute; or (3) prevent the Plaintiff from bringing a timely action in another jurisdiction.” Dais, supra (citing Block v. First Blood Associates, 988 F.2d 344, 350 (2nd Cir.1993); and Duncan v. College of New Rochelle, 174 F.R.D. 48, 49 (S.D.N.Y.1997)). “[I]ncon-venience to a party or the strengthening of the movant’s legal position does not provide sufficient prejudice.” In re Fleming Cos., Inc., 323 B.R. 144, 148 (Bankr.D.Del. 2005). This adversary proceeding involves a complicated series of complex financial transactions, by and among several related entities, requiring extensive document discovery and analysis. The parties are only in the infancy of the discovery process and the case is no where near being scheduled for trial. The Court finds that there will be no prejudice to the parties having to engage in the additional discovery emanating from the amended counts; nor will there be unwarranted additional costs or delays with respect to bringing this matter to trial. 2. Delay “Mere delay, absent a showing of bad faith or undue prejudice by the non-movant, is not sufficient to deny the right to amend a pleading.” Dais, supra. (citing State Teachers Retirement Board v. Fluor Corp., 654 F.2d 843, 856 (2nd Cir.1981)). See, e.g., Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir.1984) (“The passage of time, without more, does not require that a motion to amend a complaint be denied; however, at some point, the delay will become ‘undue,’ placing an unwarranted burden on the court, or will become ‘prejudicial,’ placing an unfair burden on the opposing party.”); but see, Lorenz v. CSX Corp., 1" }, { "docid": "13362428", "title": "", "text": "67-78. Some of this copying required access to TLS’s Dropbox, and Rodriguez allegedly allowed others to access the Dropbox in his capacity as the “administrator” of the Dropbox account. Id. ¶¶ 2-4, 58, 67-78. The amended complaint identifies several incidents. First, in February 2014, Rodriguez “linked a device” owned by Ramos to TLS’s Drop-box, and Ramos accessed the Dropbox sometime thereafter. Id. ¶¶4, 67. Ramos has never been an employee of TLS, and Rodriguez was not authorized to give Ramos access to the Dropbox. Id. ¶¶ 67, 76. And before he resigned from TLS, Rodriguez attempted to delete Ramos as a user of TLS’s Dropbox. Id. ¶ 67. He also unlinked Ramos’s device from TLS’s Drop-box, which prevented TLS from remotely wiping the data transferred to Ramos’s device. Id. ¶ 67. Rodriguez’s Dropbox log revealed that he linked several persons to TLS’s Drop-box account. Id. ¶ 74. Rodriguez was not authorized to obtain information from Dropbox for purposes other than his duties as TLS’s consultant and managing director. Id. ¶76. Yet, between April and August 2014, Rodriguez allowed Santo Domingo to access TLS’s Dropbox, and the latter’s personal e-mail address was used to access the Dropbox account. Santo Domingo was able to access certain folders, including the contents of a folder titled “Tax Exemption Docs.” Id. ¶ 70. In April 2014, TLS’s co-owner, David Runge (“Runge”), discussed with Rodriguez via e-mail “a new tax and insurance structure [that] TLS was studying.” Id. ¶ 72. A few months later, in October 2014, Rodriguez sent TLS’s confidential information from his TLS-issued e-mail address to his ASG-issued e-mail address. Id. ¶¶ 58, 68. Rodriguez also downloaded TLS’s confidential information, including TLS’s client e-mail list, by connecting USB or “flash storage” devices not issued by TLS “into his computer.” Id. ¶¶ 59, 73, 78. The last time Rodriguez did this was a few days before he resigned from TLS in January 2015. Id. ¶¶ 59, 78. TLS would later discover one of Rodriguez’s notes in TLS’s Dropbox that detailed plans for a new business, referenced a “buy/sell agreement” (which TLS uses in all its" } ]

[ { "docid": "307538", "title": "", "text": "it preferable to arrange them all above the cylinder because “that enables more ready installation and removal of the valves.” D. Kovach. Kovach, U.S. Patent No. 1,946,166, discloses a particular valve construction for a reciprocating piston air pump. The only feature relied on. by the examiner and by the board is that the piston is provided with piston rings as a seal. Obviousness A. Prior Art and Ordinary Skill in the Art. Deminski argues that the references applied by the examiner and by the board “are not properly contained within the scope of the [relevant] prior art,” i.e., they are “nonanalogous.” Deminski contends that none of the references should be considered as prior art because none is directed to the problem of removing worn or damaged valves from compressors. In Deminski’s view, the examiner and the board defined the problem too broadly by including both compressors and pumps in the prior art. Deminski cites Stratoflex, Inc. v. Aeroquip Corp., in which this court stated that “[t]he scope of the prior art has been defined as that ‘reasonably pertinent to the particular problem with which the inventor was involved.’ ” The question in Strato flex was whether rubber hose should be considered as prior art relevant to the claimed PTFE tubing. In finding that rubber hose was prior art, the court focused on only the second step of the two-step test for nonanalogous art which test had been stated in Wood in the following terms: The determination that a reference is from a nonanalogous art is therefore two-fold. First, we decide if the reference is within the field of the inventor’s endeavor. If it is not, we proceed to determine whether the reference is reasonably pertinent to the particular problem with which the inventor was involved. Here, the references satisfy the first inquiry because they are “within the field of the inventor’s endeavor” of horizontally reciprocating, double-acting piston devices for moving fluids. We agree with the board that the cited pumps and compressors have essentially the same function and structure: they move fluids by means of a double-acting piston, a cylinder," } ]

[ { "docid": "5732123", "title": "", "text": "and (4) the extent of any proffered objective indicia of nonobviousness. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-94, 15 L.Ed.2d 545 (1966). Thus, to review a summary judgment of obviousness, this court first determines anew whether the.record raises any genuine issues about these critical facts. In doing so, this court remains cognizant of the statutory presumption of validity, see 35 U.S.C. § 282 (1994), and of the movant’s burden to show invalidity of an issued patent by clear and convincing evidence, see Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 716, 21 USPQ2d 1053, 1055 (Fed.Cir.1991). If facts remain in dispute, this court weighs the materiality of the dispute, i.e., whether resolution of the dispute one way or the other makes a difference to the final determination of obviousness. Given the occasional use of archaic terminology in the district court’s opinion, this court also emphasizes that the standard for patentability is the statutory standard. The inquiry is not whether there was a “real discovery of merit” or whether the claimed invention offered a “new solution,” but whether the claimed subject matter as a whole “would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (Supp. 1 1995). III. To ascertain the scope of the prior art, a court examines “the field of the inventor’s endeavor,” Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 620, 225 USPQ 634, 638 (Fed.Cir.1985), and “ ‘the particular problem with which the inventor was involved,’” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983) (quoting In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979)), at the “time the invention was made,” see 35 U.S.C. § 103(a). The district court defined the problem as “designing the stem segment of a knitting needle ... [to] minimize[ ] needle head breakage and thus maximize[ ] the operating speed of an industrial knitting machine.” (emphasis added). The ’053 patent, on the other hand, describes the inventor’s" }, { "docid": "23311909", "title": "", "text": "findings, and must therefore remand that determination to the district court. The district court should not ignore the four-part analysis the authorities require. a. The scope and content of prior art To determine whether a reference is within the scope and content of the prior art, first determine if the reference is within the field of the inventor’s endeavor. If it is not, then next consider whether the reference is reasonably pertinent to the particular problem with which the inventor was involved. In re Richard M. Deminski, 796 F.2d 436, 442 (Fed.Cir.1986); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983). Orthopedic Equipment Co., Inc., v. United States, 702 F.2d 1005, 1008-11, 217 USPQ 193, 196-97 (Fed.Cir.1983) focused on the claims in suit, the art the PTO applied to the claims, and the nature of the problem confronting the inventor. Further, the art must have existed as of the date of invention, presumed to be the filing date of the application until an earlier date is proved. b. The differences between the claimed invention and the prior art The court must view the claimed invention as a whole. See, e.g., Jones, 727 F.2d at 1527-28, 220 USPQ at 1024. We add, as a cautionary note, that the district court appeared to distill the invention down to a “gist” or “core,” a superficial mode of analysis that disregards elements of the whole. It disregarded express claim limitations that the product be an opthalmic lens formed of a transparent, cross-linked polymer and that the laser marks be surrounded by a smooth surface of unsublimated polymer. See also, ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 221 USPQ 929 (Fed.Cir.1984). c. Level of ordinary skill in the art In Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 697, 218 USPQ 865, 868-69 (Fed.Cir.1983), cert. denied, 464 U.S. 1043, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984), the court listed six factors relevant to a determination of the level of ordinary skill: educational level of the inventor, type of problems encountered in the art, prior art" }, { "docid": "6008905", "title": "", "text": "invention was made. In Graham v. John Deere Co. of Kansas City, the United States Supreme Court laid out a framework for determining obviousness under § 103, noting that while “the ultimate question of patent validity is one of law, the § 103 condition ... lends itself to several basic factual inquiries.” 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Such inquiries require the Court to examine: 1) the scope and content of the prior art; 2) the level of ordinary skill in the art; and 3) the differences between the claimed invention and the prior art. Id. “Against this background the obviousness or nonobviousness of the subject matter is determined.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 399, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007) (citing Graham, 383 U.S. at 17-18, 86 S.Ct. 684). If Defendant successfully establishes a prima facie case of obviousness, the burden of production then shifts to Plaintiff to present evidence that would support a contrary conclusion. See In re Sullivan, 498 F.3d 1345, 1351 (Fed.Cir.2007). “Evidence rebutting a prima facie case of obviousness can include: evidence of unexpected results, evidence that the prior art teaches away from the claimed invention in any material respect, and evidence of secondary considerations.” Id. (internal quotations and citations omitted). Secondary considerations include such items as “ ‘commercial success, long felt but unsolved needs, failure of others, etc., [which] might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.’” KSR, 550 U.S. at 399, 127 S.Ct. 1727 (quoting Graham, 383 U.S. at 17-18, 86 S.Ct. 684). 1. Prima facie considerations. a. The scope and content of the prior art. The scope of the prior art is defined as encompassing that which is “reasonably pertinent to the particular problem with which the inventor was involved.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535 (Fed.Cir.1983). Prior art “encompasses not only the field of the inventor’s endeavor but also any analogous arts.” In re GPAC Inc., 57 F.3d 1573, 1577-78 (Fed.Cir.1995). “To ascertain the scope of" }, { "docid": "13130028", "title": "", "text": "981, 989, 6 USPQ2d 1601, 1607 (Fed.Cir.1988) (citing Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-94, 148 USPQ 459, 467 (1966)). In determining the scope and content of the prior art, “[wjhether a reference ... is ‘analogous’ is a fact question” that we review for clear error. In re Clay, 966 F.2d 656, 658, 23 USPQ2d 1058, 1060 (Fed.Cir.1992). Scope and Content of the Prior Art The Board upheld the validity of the ’111 patent in the first reexamination; however, it invalidated the ’111 patent on obviousness grounds in the second reexamination. The Board’s Change in position was due in large part to the examiner’s reliance on twelve secondary references, in the second reexamination, that he believed bridged the evidentiary gaps found to exist in the rejections in the first reexamination proceeding. Therefore, we begin our review of the Board’s factual findings, relative to the above listed rejected claims, by addressing the threshold issue whether these secondary references legitimately fall within the scope of the relevant prior art. See Pentec, Inc. v. Graphic Controls Corp., 776 F.2d 309, 313, 227 USPQ 766, 768 (Fed.Cir.1985) (citing 35 U.S.C. § 103, construed in Graham, 383 U.S. at 17, 86 S.Ct. at 693-94, 148 USPQ at 467). We have recognized the scope of the relevant prior art as including that “ ‘reasonably pertinent to the particular problem with which the inventor was involved.’ ” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983) (quoting In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979)). Therefore, the prior art relevant to an obviousness determination necessarily encompasses not only the field of the inventor’s endeavor but also any analogous arts. See Wood, 599 F.2d at 1036, 202 USPQ at 174; Heidelberger Druckmaschinen v. Hantscho Commercial, 21 F.3d 1068, 1071, 30 USPQ2d 1377, 1379 (Fed.Cir.1994) (“References that are not within the field of the inventor’s endeavor may also be relied on in patentability determinations, and thus are described as ‘analogous art’, when a person of ordinary skill would reasonably have consulted those references" }, { "docid": "20665170", "title": "", "text": "obviousness verdict, “[w]e first presume that the jury resolved the underlying factual disputes in favor of the verdict winner and leave those presumed findings undisturbed if they are supported by substantial evidence. Then we examine the legal conclusion de novo to see whether it is correct in light of the presumed jury fact findings.” Jurgens v. McKasy, 927 F.2d 1552, 1557 (Fed.Cir.1991) (citations omitted). A patent is invalid for obviousness “if the differences 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 art to which said subject matter pertains.” 35 U.S.C. § 103(a) (2006). “Obviousness is a question of law based on underlying factual findings.... ” Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1360 (Fed.Cir.2012). The underlying factual inquiries include: (1) the scope and content of the prior art, (2) the differences between the prior art and the claims at issue, (3) the level of ordinary skill in the art, and (4) any relevant objective considerations, such as commercial success, long felt but unsolved needs, and the failure of others. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). By finding the claims nonobvious, the jury presumably found that the disputed prior art is not analogous and therefore not within the scope of the prior art. See Jurgens, 927 F.2d at 1557. Substantial evidence supports the jury’s presumed finding. To be considered within the prior art for purposes of the obviousness analysis, a reference must be analogous. Wang Labs., Inc. v. Toshiba Corp., 993 F.2d 858, 864 (Fed.Cir.1993). Whether a reference is analogous art is a question of fact. Wyers v. Master Lock Co., 616 F.3d 1231, 1237 (Fed.Cir.2010). Prior art is analogous if it is from the same field of endeavor or if it is reasonably pertinent to the particular problem the inventor is trying to solve. Id. The jury was instructed that “the field of the" }, { "docid": "22589300", "title": "", "text": "basis for determining whether art is analogous under the standards of the Court of Customs and Patent Appeals is to look at whether it deals with a problem similar to that being addressed by the inventor. Indeed, the trial court relied on the following analysis from In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979), quoted in In re Pagliaro, 657 F.2d 1219, 1224, 210 USPQ 888, 892 (CCPA 1981): In resolving the question of obviousness under 35 U.S.C. § 103, we presume full knowledge by the inventor of all the prior art in the field of his endeavor. However, with regard to prior art outside the field of his endeavor, we only presume knowledge from those arts reasonably pertinent to the particular problem with which the inventor was involved. The rationale behind this rule precluding rejections based on combination of teachings from references from non-analogous arts is the realization that an inventor could not possibly be aware of every teaching in every art. Thus, we attempt to more closely approximate the reality of the circumstances surrounding the making of an invention by only presuming knowledge by the inventor of prior art in the field of his endeavor and in analogous arts. The determination that a reference is from a nonanalogous art is therefore twofold. First, we decide if the reference is within the field of the inventor’s endeav- or. If it is not, we proceed to determine whether the reference is reasonably pertinent to the particular problem with which the inventor was involved. [Citation omitted.] To the same effect are Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983), In re Mlot-Fijalkowski, 676 F.2d 666, 670, 213 USPQ 713, 716 (CCPA 1982), and Republic Industries v. Schlage Lock Co., 592 F.2d 963, 975, 200 USPQ 769, 781 (7th Cir.1979). With the problems clearly defined by the inventor, we see no basis to hold that the district court erred in determining the scope and content of the prior art. Contrary to Union Carbide’s view, the Fischer affidavit expressed no more than" }, { "docid": "10937161", "title": "", "text": "as set forth in § 102 of this title [anticipation], if the differences 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 art to which said subject matter pertains. Like anticipation, the obviousness concept serves the public interest by preventing the granting of a monopoly over information already within the public knowledge. See Soundscriber Corp. v. United States, 175 Ct.Cl. 644, 360 F.2d 954, 960 (1966). In Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966), the Supreme Court fashioned a three part test to determine whether an invention is obvious: Under section 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevance, (citations omitted) We now undertake to examine each of the factors set forth in Graham in connection with the instant case. The first factor is the determination of the scope and content of the prior art, including prior patents, publications describing the prior art and testimony of persons who know of the prior art. Dielectric Laboratories, Inc. v. American Technical Ceramics, 545 F.Supp. 292, 296 (E.D.N.Y.1982). Of course, the prior art must be relevant to the invention sought to be patented. Relevancy in the context of obviousness is defined by the nature of the problem faced by the inventor. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963, 975 (7th Cir.1979). When the prior art is within" }, { "docid": "23455906", "title": "", "text": "815 F.2d 686, 688, 2 USPQ2d 1276, 1278 (Fed.Cir.1987); In re Merck & Co., Inc., 800 F.2d 1091, 1097, 231 USPQ 375, 379 (Fed.Cir.1986); In re Antonie, 559 F.2d 618, 620, 195 USPQ 6, 8 (CCPA 1977). Obviousness under § 103 is a question of law. Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1568, 1 USPQ2d 1593, 1597 (Fed.Cir.), cert. denied, — U.S. -, 107 S.Ct. 2187, 95 L.Ed.2d 843 (1987). An analysis of obviousness must be based on several factual inquiries: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; (3) the level of ordinary skill in the art at the time the invention was made; and (4) objective evidence of nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-94, 15 L.Ed.2d 545, 556-57, 148 USPQ 459, 467 (1966). See, e.g., Custom Accessories, Inc. v. Jeffrey-Allan Indus., 807 F.2d 955, 958, 1 USPQ2d 1196, 1197 (Fed.Cir.1986). The scope and content of the prior art and the differences between the prior art and the claimed invention have been examined in sections II and III, supra. Appellants say that in 1976 those of ordinary skill in the arts of molecular biology and recombinant DNA technology were research scientists who had “extraordinary skill in relevant arts” and “were among the brightest biologists in the world.” Objective evidence of nonobviousness was not argued. With the statutory factors as expounded by Graham in mind and considering all of the evidence, this court must determine the correctness of the board’s legal determination that the claimed invention as a whole would have been obvious to a person having ordinary skill in the art at the time the invention was made. We agree with the board that appellants’ claimed invention would have been obvious in light of the Polisky reference alone or in combination with Bahl within the meaning of § 103. Polisky contained detailed enabling methodology for practicing the claimed invention, a suggestion to modify the prior art to practice the claimed invention, and evidence" }, { "docid": "4427649", "title": "", "text": "hold otherwise would be to vitiate the Supreme Court’s determination that patent validity ultimately is a question of law. Novelty, like utility and nonobviousness, is a condition precedent to patentability. In any given case, lack of novelty may be the ultimate determinant of patent validity; as such, the issue must be deemed to be within the province of the court. Assuming differences between the patented device and each prior art reference preclude a finding of anticipation, under the broader obviousness test, the disclosures of the prior art references may negative invention because in their light the patented device would have been obvious at the time the ’ invention was made to a person having ordinary skill in the pertinent art. Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), established the exclusive means by which to measure nonobviousness under section 103. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d 963, 972 (7th Cir.1979). In reviewing a trial court’s application of the Graham standard, we are mindful of the Court’s admonition that “strict observance of the requirements laid down here will result in that uniformity arid definiteness which Congress called for in the 1952 Act.” Graham v. John Deere Co., 383 U.S. at 18, 86 S.Ct. at 694. While the ultimate question of patent validity is one of law, ... the § 103 condition ... lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the pri- or art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unresolved needs, failures of others, etc. might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevance. Id. at 17-18, 86 S.Ct. at 693-694 (emphasis added). One can readily" }, { "docid": "4427650", "title": "", "text": "Court’s admonition that “strict observance of the requirements laid down here will result in that uniformity arid definiteness which Congress called for in the 1952 Act.” Graham v. John Deere Co., 383 U.S. at 18, 86 S.Ct. at 694. While the ultimate question of patent validity is one of law, ... the § 103 condition ... lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the pri- or art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unresolved needs, failures of others, etc. might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevance. Id. at 17-18, 86 S.Ct. at 693-694 (emphasis added). One can readily see that the factual inquiries necessary to the determination of anticipation (i.e., the scope and content of the prior art and differences between each prior art reference and the claims of the patent in suit) also compose part of the tripartite factual inquiry upon which the determination of obviousness must rest. The anticipation inquiry, itself largely factual in nature, Hughes Tool Co. v. Ingersoll-Rand Co., 437 F.2d 1106, 1108 (5th Cir.), cert. denied, 403 U.S. 918, 91 S.Ct. 2230, 29 L.Ed.2d 696 (1971), is subsumed within the obviousness inquiry. Under the obviousness test, however, an additional factual inquiry is to be made: the level of ordinary skill in the pertinent art must be determined. Several crucial concepts, as expounded upon in Graham and its progeny, are embodied in the section 103 standard. The nature of the problem confronting the would-be inventor defines the relevant prior art. Republic Industries, Inc. v. Schlage Lock Co., 592 F.2d at 975. Pertinent art has been defined as that art to which one can reasonably be expected to look for" }, { "docid": "3053389", "title": "", "text": "made to a person having ordinary skill in the art.” 35 U.S.C. § 103. Although § 103 does not, by its terms, define the “art to which [the] subject matter [sought to be patented] pertains,” this determination is frequently couched in terms of whether the art is analogous or not, i.e., whether the art is “too remote to be treated as prior art.” In re Sovish, 769 F.2d 738, 741, 226 USPQ 771, 773 (Fed.Cir.1985). Clay argues that the claims at issue were improperly rejected over Hetherington and Sydansk, because Sydansk is nonanalogous art. Whether a reference in the prior art is “analogous” is a fact question. Panduit Corp. v. Dennison Mfg., 810 F.2d 1561, 1568 n. 9, 1 USPQ2d 1593, 1597 n. 9 (Fed.Cir.), cert. denied, 481 U.S. 1052, 107 S.Ct. 2187, 95 L.Ed.2d 843 (1987). Thus, we review the Board’s decision on this point under the clearly erroneous standard. Two criteria have evolved for determining whether prior art is analogous: (1) whether the art is from the same field of endeavor, regardless of the problem addressed, and (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved. In re Deminski, 796 F.2d 436, 442, 230 USPQ 313, 315 (Fed.Cir.1986); In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979). The Board found Sydansk to be within the field of Clay’s endeavor because, as the Examiner stated, “one of ordinary skill in the art would certainly glean from [Sydansk] that the rigid gel as taught therein would have a number of applications within the manipulation of the storage and processing of hydrocarbon liquids ... [and that] the gel as taught in Sydansk would be expected to function in a similar manner as the bladders in the Hetherington patent.” These findings are clearly erroneous. The PTO argues that Sydansk and Clay’s inventions are part of a common endeav- or — “maximizing withdrawal of petroleum stored in petroleum reservoirs.” However, Sydansk cannot be considered to be within Clay’s" }, { "docid": "13631899", "title": "", "text": "be made ... whether the prior art ... renders obvious the claimed invention.” Id. We have stated that “[q]uite apart from the written description and the prosecution history, the claims themselves provide substantial guidance as to the meaning of particular claim terms.” Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed.Cir.2005). “First, we look to the words of the claims themselves, both asserted and no-nasserted, to define the scope of the patented invention.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). Where claim terms are ambiguous or disputed, then we turn to the specification as “the specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.’ ” Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582). Once the scope of the claims are determined, the actual obviousness determination under 35 U.S.C. § 103 begins. Recently this court re-iterated the proper standards for making determinations under § 103. In re Kahn, 441 F.3d 977 (Fed.Cir.2006). First, the court determines the scope and content of the prior art, and ascertains the differences between the prior art and the claims at issue, and resolves the level of ordinary skill in the pertinent art. Against this background, the [court] determines whether the subject matter would have been obvious to a person of ordinary skill in the art at the time of the asserted invention. tId. at 985 (citing Dann v. Johnston, 425 U.S. 219, 226, 96 S.Ct. 1393, 47 L.Ed.2d 692 (1976) and Graham v. John Deere Co., 383 U.S. 1, 13-14, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966)). In making this determination, we noted in Kahn that “[m]ost inventions arise from a combination of old elements and each element may often be found in the prior art.” Id. at 986. The prior art that is considered is drawn from references “either in the field of the applicant’s endeavor or is reasonably pertinent to the problem with which the inventor was concerned.” Id. at 987. However, mere identification in the pri- or art" }, { "docid": "23348808", "title": "", "text": "WL 1309774, at *3. Master Lock timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). Discussion A patent is invalid for obviousness “if the differences 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 art to which said subject matter pertains.” 35 U.S.C. § 103(a). Obviousness is a question of law based on underlying findings of fact. In re Kubin, 561 F.3d 1351, 1355 (Fed.Cir.2009). The underlying factual inquiries include: (1) the scope and content of the prior art, (2) the differences between the prior art and the claims at issue, (3) the level of ordinary skill in the art, and (4) any relevant secondary considerations, such as commercial success, long felt but unsolved needs, and the failure of others. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Here the scope of the claims of the patents in suit are not at issue and the level of skill of one of ordinary skill in the art is not contested. The primary factual issues alleged to be in dispute are (1) whether the prior art references are in the same field of endeavor as the patented invention; (2) whether there was sufficient motivation to combine the references; and (3) the existence and significance of pertinent secondary considerations. We address each in turn. I Relevant Prior Art Two criteria are relevant in determining whether prior art is analogous: “(1) whether the art is from the same field of endeavor, regardless of the problem addressed, and (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.” Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1351 (Fed.Cir.2010) (quoting In re Clay, 966 F.2d 656, 658-59 (Fed.Cir.1992)). Whether a reference in the prior art is “analogous” is a fact question. In re Clay," }, { "docid": "20665171", "title": "", "text": "issue, (3) the level of ordinary skill in the art, and (4) any relevant objective considerations, such as commercial success, long felt but unsolved needs, and the failure of others. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). By finding the claims nonobvious, the jury presumably found that the disputed prior art is not analogous and therefore not within the scope of the prior art. See Jurgens, 927 F.2d at 1557. Substantial evidence supports the jury’s presumed finding. To be considered within the prior art for purposes of the obviousness analysis, a reference must be analogous. Wang Labs., Inc. v. Toshiba Corp., 993 F.2d 858, 864 (Fed.Cir.1993). Whether a reference is analogous art is a question of fact. Wyers v. Master Lock Co., 616 F.3d 1231, 1237 (Fed.Cir.2010). Prior art is analogous if it is from the same field of endeavor or if it is reasonably pertinent to the particular problem the inventor is trying to solve. Id. The jury was instructed that “the field of the invention is circuit board testers and test fixtures used in the manufacture of electronics.” J.A. 1984. The disputed pri- or art — rock carvings, engraved signage, and Prussian Blue — is not part of the field of circuit board testers and test figures. Therefore, the disputed prior art can be analogous only if it is reasonably pertinent to the particular problem solved by the inventor. Wyers, 616 F.3d at 1237. Although “familiar items may have obvious uses beyond their primary purposes,” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 420, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007), a reference is only reasonably pertinent when it “logically would have commended itself to an inventor’s attention in considering his problem,” In re Clay, 966 F.2d 656, 659 (Fed.Cir.1992). The jury heard testimony that a person of ordinary skill in the art would not have thought about rock carvings, engraved signage, or Prussian Blue in considering how to mark interface plates. J.A. 1387-88, 1397, 1430-32, 1434, 1443-44, 1447. The jury was entitled to weigh this testimony, find" }, { "docid": "23311908", "title": "", "text": "experiment with laser marking of soft contact lenses?”, Dr. Brucker replied “I believe it was in ’79 — ’79, ’80, somewhere in that area.” The filing date of the ’814 patent was November 10, 1977. Brucker’s 3,833,786 patent for a method of fenestrating (putting windows in) contact lenses applies according to its claims to such lenses, both soft and hard. However, the record reflects that the need for such fenestration was as a mode of escape for fluid accumulating between the lens and the eye. Such a need does not exist respecting the soft lenses, the principal subject of the claims in suit, of which claim 2 is expressly limited to soft lenses. They, being hydrophilic, absorb the fluid. In sum, the district court improperly determined the ’814 patent was obvious:, it failed to make the Graham inquiries, it improperly focused on what was obvious to the inventor, it engaged in hindsight analysis, and it considered evidence that was not prior art. This court, as an appellate court, may not make the required Graham factual findings, and must therefore remand that determination to the district court. The district court should not ignore the four-part analysis the authorities require. a. The scope and content of prior art To determine whether a reference is within the scope and content of the prior art, first determine if the reference is within the field of the inventor’s endeavor. If it is not, then next consider whether the reference is reasonably pertinent to the particular problem with which the inventor was involved. In re Richard M. Deminski, 796 F.2d 436, 442 (Fed.Cir.1986); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983). Orthopedic Equipment Co., Inc., v. United States, 702 F.2d 1005, 1008-11, 217 USPQ 193, 196-97 (Fed.Cir.1983) focused on the claims in suit, the art the PTO applied to the claims, and the nature of the problem confronting the inventor. Further, the art must have existed as of the date of invention, presumed to be the filing date of the application until an earlier date is proved. b. The differences" }, { "docid": "6008906", "title": "", "text": "(Fed.Cir.2007). “Evidence rebutting a prima facie case of obviousness can include: evidence of unexpected results, evidence that the prior art teaches away from the claimed invention in any material respect, and evidence of secondary considerations.” Id. (internal quotations and citations omitted). Secondary considerations include such items as “ ‘commercial success, long felt but unsolved needs, failure of others, etc., [which] might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.’” KSR, 550 U.S. at 399, 127 S.Ct. 1727 (quoting Graham, 383 U.S. at 17-18, 86 S.Ct. 684). 1. Prima facie considerations. a. The scope and content of the prior art. The scope of the prior art is defined as encompassing that which is “reasonably pertinent to the particular problem with which the inventor was involved.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535 (Fed.Cir.1983). Prior art “encompasses not only the field of the inventor’s endeavor but also any analogous arts.” In re GPAC Inc., 57 F.3d 1573, 1577-78 (Fed.Cir.1995). “To ascertain the scope of the prior art, a court examines the field of the inventor’s endeavor, and the problem with which the inventor was involved, at the time the invention was made.” Monarch Knitting Mach. Corp. v. Sulzer Morat GmbH, 139 F.3d 877, 881 (Fed.Cir.1998) (internal quotation and citation omitted); see also Bausch & Lomb v. Barnes-Hind/Hydrocurve, 796 F.2d 443, 449 (Fed.Cir.1986) (“To determine whether a reference is within the scope and content of the prior art, first determine if the reference is within the field of the inventor’s endeavor. If it is not, then consider whether the reference is reasonably pertinent to the particular problem with which the inventor was involved.”). Defendant asserts that relevant prior art references for purposes of this case are the patents identified in the patent examiner’s Office Action, namely Howell (U.S. Patent No. 3,150,707), Okude (JP 0156025), Hanson (U.S. Patent No. 3,040,799), and Valentine (U.S. Patent No. 3,610,011). According to Defendant, each of these prior art references teaches some underlying component of producing ribbed and flared dies in a two roll-bending machine. See" }, { "docid": "22589301", "title": "", "text": "the reality of the circumstances surrounding the making of an invention by only presuming knowledge by the inventor of prior art in the field of his endeavor and in analogous arts. The determination that a reference is from a nonanalogous art is therefore twofold. First, we decide if the reference is within the field of the inventor’s endeav- or. If it is not, we proceed to determine whether the reference is reasonably pertinent to the particular problem with which the inventor was involved. [Citation omitted.] To the same effect are Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983), In re Mlot-Fijalkowski, 676 F.2d 666, 670, 213 USPQ 713, 716 (CCPA 1982), and Republic Industries v. Schlage Lock Co., 592 F.2d 963, 975, 200 USPQ 769, 781 (7th Cir.1979). With the problems clearly defined by the inventor, we see no basis to hold that the district court erred in determining the scope and content of the prior art. Contrary to Union Carbide’s view, the Fischer affidavit expressed no more than an unsupported conclusory opinion which ignored, rather than conflicted with, the evidence of record. Thus, no genuine issue of material fact was raised by appellant on the scope and content of the prior art and the district court correctly considered the art submitted by American Can in resolving the issue of obviousness. IY The assertion by Union Carbide that the differences in the prior art and the invention are disputed, as well as the question of level of skill in the art, need little comment. As to the first, the references and appellant’s invention are easily understandable without the need for expert explanatory testimony. However, Union Carbide did give the district court the benefit of such analysis through Fischer. Union Carbide points to no error in the court’s delineation of the disclosures in any reference nor any conflict with Fischer’s explanation. Rather, Union Carbide simply disputes that as a legal matter the court can make factual determinations of the issue of differences without an analysis by appellee. We see no need for the latter. On" }, { "docid": "13130029", "title": "", "text": "Inc. v. Graphic Controls Corp., 776 F.2d 309, 313, 227 USPQ 766, 768 (Fed.Cir.1985) (citing 35 U.S.C. § 103, construed in Graham, 383 U.S. at 17, 86 S.Ct. at 693-94, 148 USPQ at 467). We have recognized the scope of the relevant prior art as including that “ ‘reasonably pertinent to the particular problem with which the inventor was involved.’ ” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983) (quoting In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979)). Therefore, the prior art relevant to an obviousness determination necessarily encompasses not only the field of the inventor’s endeavor but also any analogous arts. See Wood, 599 F.2d at 1036, 202 USPQ at 174; Heidelberger Druckmaschinen v. Hantscho Commercial, 21 F.3d 1068, 1071, 30 USPQ2d 1377, 1379 (Fed.Cir.1994) (“References that are not within the field of the inventor’s endeavor may also be relied on in patentability determinations, and thus are described as ‘analogous art’, when a person of ordinary skill would reasonably have consulted those references and applied their teachings in seeking a solution to the problem that the inventor was attempting to solve.” (citation omitted)). In deciding whether a reference is from a relevant art, we first must determine whether the reference is within the inventor’s field of endeavor, and if it is not we next must determine whether the reference is reasonably pertinent to the particular problem confronting the inventor. Wood, 599 F.2d at 1036, 202 USPQ at 174. The inventor’s field of endeavor in this ease is asbestos removal with attendant asbestos contamination control. In the second reexamination, the examiner relied on the Asbestos primary reference and twelve secondary references, exclusive of the MICRO-TRAP document, in rejecting all claims of the ’111 patent. These secondary references include U.S. Patent Nos. 3,254,457 (Gedney); 3,384,000 (Fuller); 1,623,286 (Strahan); 3,111,301 (Ruegsegger); 2,252,784 (Powers); 3,682,084 (Tarnoff); 323,587 (Merriman); 3,500,655 (Lyons); 1,813,703 (Kattmann); 1,699,094 (Chadirjian); 1,531,473 (Barbour); and 3,158,457 (Whitfield). Fuller, Strahan, Ruegsegger, Powers, Tarnoff, Merriman, and Lyons are all directed to backdraft dampers in ventilation systems that automatically prevent undesirable air flow" }, { "docid": "15582784", "title": "", "text": "at 18). Defendant cites the testimony of Cameron expert witness Gary Delvin (“Delvin”) and Plaintiffs expert, Ivan Boyadjieff (“Boyadjieff’), in support of its contention. (Id.); (Doc. 685 at 17) (citing Doc. 692 at 74, 76; Doc. 693 at 24). Defendant also contends that it would have been obvious to a skilled artisan to modify the device depicted in the '94 Catalogue to create a dual load path to lessen the retained load on the lock screws employed by the device, but Defendant cites no evidence in support of this proposition. (Doc. 685 at 20). 1. Evidence Regarding the Scope and Content of Prior Art A prerequisite to making a finding on the scope and content of the prior art is to determine what prior art references are pertinent. State Contr. & Eng’g Corp. v. Condotte Am., Inc., 346 F.3d 1057, 1069 (Fed.Cir.2003) (citing In re Clay, 966 F.2d 656, 658 (Fed.Cir.1992)). As the Federal Circuit has explained: Whether a prior art reference is analogous is a question of fact. A reference is analogous if it is from the same field of endeavor as the invention. Id. at 658-59. Similarity in the structure and function of the invention and the prior art is indicative that the prior art is within the inventor’s field of endeavor. In re Deminski, 796 F.2d 436, 442 (Fed.Cir.1986). If a reference is outside the inventor’s field of endeavor, it is still analogous art if the reference “is reasonably pertinent to the particular problem with which the inventor is involved.” Clay, 966 F.2d at 659. Id. At trial, Delvin testified that he believed that the '993 Patent demonstrated most of the features disclosed in the '925 Patent. (Doc. 692 at 67-68). Delvin opined that the '993 Patent teaches and invention: much like a Tree Saver frac mandrel. It’s much like the frac mandrel in question here in this case. It’s a mandrel that is involved with a blowout prevent-er, another piece of equipment on the wellhead. But they all do basically the same things. (Id. at 69). Delvin also testified concerning the pertinence of the '94 Catalogue" }, { "docid": "23348809", "title": "", "text": "claims of the patents in suit are not at issue and the level of skill of one of ordinary skill in the art is not contested. The primary factual issues alleged to be in dispute are (1) whether the prior art references are in the same field of endeavor as the patented invention; (2) whether there was sufficient motivation to combine the references; and (3) the existence and significance of pertinent secondary considerations. We address each in turn. I Relevant Prior Art Two criteria are relevant in determining whether prior art is analogous: “(1) whether the art is from the same field of endeavor, regardless of the problem addressed, and (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.” Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1351 (Fed.Cir.2010) (quoting In re Clay, 966 F.2d 656, 658-59 (Fed.Cir.1992)). Whether a reference in the prior art is “analogous” is a fact question. In re Clay, 966 F.2d at 658. With respect to the sleeve patents, the district court concluded that the jury could implicitly find that the Down patent was outside the scope of the relevant art. See JMOL Order, 2009 WL 1309774, at *3. However, the Down patent is specifically directed to a trailer-towing application, adaptable to “a motor vehicle such as an automobile for towing by fitting a rear towing attachment for releasably attaching the tow-bar of a trailer such as a boat trailer, horse box, caravan or other vehicle.” Down patent col.l 11.9-12. Thus, the Down patent is clearly within the same field of endeavor as the sleeve patents. With respect to the seal patent, the district court concluded that the jury could implicitly find that padlock seals were not relevant prior art. JMOL Order, 2009 WL 1309774, at *5. The district court instructed the jury without objection that obviousness must be determined “based on the perspective of a person of ordinary skill in the field of loeksmithing.” J.A. 3332. Given that this jury instruction appears to" } ]

[ { "docid": "22553738", "title": "", "text": "absence of authoritative, local decision, we take to be the law of Oregon. Its application here is not affected by Oregon Laws, § 6426(1) c, which provides that the policy shall set forth the entire contract between the parties. The defendant in insisting that Stipcich was under an obligation to disclose his discovery to it is not attempting to add another term to the contract. The obligation was not one stipulated for by the parties, but is one imposed by law as a result of- the relationship assumed by them and because of the peculiar character of the insurance contract. The necessity for complying with it is not dispensed with by the .failure of the insurer to stipulate in the policy for such disclosure. The evidence proffered and rejected tended to-show that the insured, in good faith, made the required disclosure to Coblentz who, for some purposes, admittedly represented the defendant. If he represented it for this purpose the evidence should have been received. Coblentz was the licensed agent of respondent under Oregon Laws § 6425 which provides that every life insurance company doing business in the state “ shall give written notice to. the insurance commissioner of the name and residence of, and obtain from him a license for every person appointed by it to act as its agent within this state, which license shall state, in substance, that the company is authorized to do business in this state and that the person named therein is constituted an agent of the company for the transaction of business in this state. ...” The insured knew no other agent of defendant and dealt with Coblentz alone. So far as appears,, no other person or agency was designated under the statute or held out by. the defendant as representing it in connection with Stipcich’s application for insurance or the delivery of the policy or as the appropriate person or agency to receive information concerning either of them. The insured delivered the application to Coblentz and later paid to him the first premium, receiving in return the policy and a receipt executed by" } ]

[ { "docid": "21541091", "title": "", "text": "Batts who returned Robbins’ check. On the same day, Sebrell made good the Thomas check in the company’s account and was reimbursed by the Robbins’ check when it was received. On July 2, 1937, Sebrell, acting upon instructions from the company, sent Robbins a check for the amount previously received from him, stating that it was the company’s view that the policy had lapsed at the time of Thomas’ death, and that the company would not accept the Robbins’ check in place of the Thomas check in payment of the premium. The insurance policy contained the following provision: “No agent has power on behalf of the company to make or modify this or any other contract of insurance, to extend the time for paying a premium, to waive any forfeiture, or to bind the company by making any promise, or by making or receiving any representation or information.” The contract between the company and Sebrell contained the following provision: “Section 7. That the Manager has no authority on behalf of the company to make, alter or discharge any policy, to extend the time for paying a premium, to waive forfeitures, to incur any liability on behalf of the company, to allow the delivery of any policy unless the applicant be in good health and the first premium paid in full.” Upon these facts the District Judge directed a verdict for the defendant. Under the general rule prevailing in North Carolina, the payment of a debt by check is conditional only, the presumption being, in the absence of an agreement to the contrary, that the check is accepted on the condition that it shall be paid, and the debt is not discharged until the check is paid. Hayworth v. Insurance Co., 190 N. C. 757, 130 S.E. 612; Philadelphia Life Insurance Co. v. Hayworth, 4 Cir., 296 F. 339; South v. Sisk, 205 N.C. 655, 172 S.E. 193. It follows that the mere acceptance of the check by the company in this case did not constitute payment since the insured had no funds in the bank to meet it. But we" }, { "docid": "22553740", "title": "", "text": "Coblentz in defendant’s name. In communicating to him the information as to his changed condition of health Stipcich acted only in what must have appeared to him the most natural and obvious way to supplement the information already given in his written application. Defendant relies • oh the .established, rule, here. expressed in part at least in the printed clause of the application, incorporated in the policy and printed in the margin, that the authority of a soliciting agent to receive the application and transmit it to the company and to deliver the policy when issued, does not include power to vary the terms of the contract,, to waive conditions or to receive information sought by questions in the application other than that embodied in it. But Coblentz, when the insured communicated the information to. him, did not purport to vary any term or waive any condition of the proposed insurance contract; he did not acquiesce in a. variation of the application; nor in connection with the preparation of the written application did he receive any information not written into it.. The insured merely communicated information, supplementing the application, to the designated agent of the company for the transaction of business in the state, as the most natural and appropriate channel of communication to the company. In? insisting that it was entitled to information of the insured’s change of health after the application, but that such information could not be effectively communicated to its agent to receive the application and transact business with insured preliminary to the acceptance of the risk, defendant is not aided by the stipulations of the policy .and any doubts as to the agent’s implied authority-to receive it must be resolved in the light of the Oregon statutes-. Oregon Laws § 6435 reads as follows: “Any person who shall solicit and procure an application for life insurance shall, in all matters relating to such application for insurance and the policy issued in consequence thereof, be regarded as the agent of the company issuing the policy and not the agent of the insured, and all provisions in" }, { "docid": "18108064", "title": "", "text": "issued the policy based on information that was entirely truthful, and he had no duty to disclose a diagnosis he received after the policy was already in effect. However, plaintiff also acknowledges that the appli cation, if admissible, clearly states that the contract would not take effect until delivery was made and accepted, his health remained the same as stated in the application, and the first premium was paid. Because we conclude that the application was properly admitted as evidence at the bench trial, Pruco could rely on it to establish that the contract could not come into effect unless and until those conditions were satisfied. See Stipcich v. Metro. Life Ins. Co., 277 U.S. 311, 316, 48 S.Ct. 512, 72 L.Ed. 895 (1928) (“[B]oth by the terms of the application and familiar rules governing the formation of contracts no contract came into existence until the delivery of the policy, and at that time the insured had learned of conditions gravely affecting his health, unknown at the time of making his application.”). Smith concedes that the conditions were not satisfied, and Pruco is therefore entitled to rescind the policy. Accordingly, we AFFIRM the judgment of the district court. . Because it would not affect our holding, we do not decide whether the executed copy of the application is also admissible, either because it was signed by Coops at the time of delivery, see N.Y. Ins. Law § 3204(a)(1), or because the only alterations Pruco might want to rely on were made by Coops himself, see id. § 3204(d) (\"No insertion in or other alteration of any written application for any such policy or contract shall be made by any person other than the applicant without his written consent....” (emphasis added)). . The New York Court of Appeals appears not to have addressed the precise question of whether an unexecuted copy of an application attached to a policy may be entered into evidence. Despite that lack of guidance, we see no need to certify the question to the Court of Appeals. The text of § 3204(a), the decisions of the New" }, { "docid": "4204491", "title": "", "text": "insurer, citing National Union Fire Ins. Co. v. School District No. 55, 1916, 122 Ark. 179, 182 S.W. 547, L.R.A.1916D, 238. In that case, one Wynne, who was a soliciting agent for the defendant insurance company, took the application of the plaintiff and the payment of the first premium but never forwarded either to the defendant company, and no policy was ever issued. The defendant urges that “there was clearly at- least an implied representation on the part of the agent that he would send the application and premium to the insurer. This is clearly outside the terms of the policy and clearly an estop-pel situation * * However, the issue determined by the court in that case was not the issue presented here. The court at pages 182-183 of 122 Ark., at page 548 of 182 S.W. said: “The only issue presented by this appeal is whether or not an insurance company is liable for the negligence of its agent in failing to send to the company an application for insurance, where the only authority of the agent is to solicit applications for insurance, to deliver policies when issued, and to receive and receipt for initial premiums.” Although some of the plaintiffs’ arguments in their several briefs to the court were based upon a contention that the company is liable for the negligence of the agent in failing to forward information to the company, the court did not accept that contention, and its decision was based upon an entirely different proposition. The National Union Fire Ins. Co. case, supra, cannot be accepted as authority for the defendant’s proposition that an agent with apparent or real authority cannot bind his principal by representations not conflicting with the terms of the policy itself The defendant also correctly asserts that no agent, whether a general or soliciting agent, could make representations which operate to “extend the coverages” of a written policy. The defendant then concludes that the estoppel found by the court operates to extend the coverage and, therefore, is in conflict with this rule. If the broad sweep of the defendant’s" }, { "docid": "22553739", "title": "", "text": "6425 which provides that every life insurance company doing business in the state “ shall give written notice to. the insurance commissioner of the name and residence of, and obtain from him a license for every person appointed by it to act as its agent within this state, which license shall state, in substance, that the company is authorized to do business in this state and that the person named therein is constituted an agent of the company for the transaction of business in this state. ...” The insured knew no other agent of defendant and dealt with Coblentz alone. So far as appears,, no other person or agency was designated under the statute or held out by. the defendant as representing it in connection with Stipcich’s application for insurance or the delivery of the policy or as the appropriate person or agency to receive information concerning either of them. The insured delivered the application to Coblentz and later paid to him the first premium, receiving in return the policy and a receipt executed by Coblentz in defendant’s name. In communicating to him the information as to his changed condition of health Stipcich acted only in what must have appeared to him the most natural and obvious way to supplement the information already given in his written application. Defendant relies • oh the .established, rule, here. expressed in part at least in the printed clause of the application, incorporated in the policy and printed in the margin, that the authority of a soliciting agent to receive the application and transmit it to the company and to deliver the policy when issued, does not include power to vary the terms of the contract,, to waive conditions or to receive information sought by questions in the application other than that embodied in it. But Coblentz, when the insured communicated the information to. him, did not purport to vary any term or waive any condition of the proposed insurance contract; he did not acquiesce in a. variation of the application; nor in connection with the preparation of the written application did he receive" }, { "docid": "4371247", "title": "", "text": "liability. There is no question but that the defendant’s agent, Pinkley, was a mere soliciting agent. His contract with the defendant provided that: “The Agent shall not make, alter or discharge any contract of insurance without the written consent and authorization of the company.” He was authorized only to solicit insurance, receive and forward applications, collect premiums, deliver policies when issued, and execute temporary binders. In Holland v. Interstate Fire Ins. Co., Ark., 316 S.W.2d 707, 709, the court said: “The appellants contend that Davidson was a general agent for the company, while the appellee insists that he was merely a soliciting agent. The familiar distinction between the two types of agencies involves a question of substance rather than one of name only. A general agent is ordinarily authorized to accept risks, to agree upon the terms of insurance contracts, to issue and renew policies and to change or modify the terms of existing contracts. Appleman on Insurance, § 8696. On the other hand a soliciting agent is ordinarily authorized to sell insurance, to receive applications and forward them to the company or its general agent, to deliver the policies when issued, and to collect premiums. American Ins. Co. v. Hampton, 54 Ark. 75, 14 S.W. 1092; German-American Ins. Co. v. Humphrey, 62 Ark. 348, 35 S.W. 428, 54 Am.St.Rep. 297; American Ins. Co. v. Hornbarger, 85 Ark. 337, 108 S.W. 213.” In its original conclusions of law the court held that the knowledge of a soliciting agent is not imputed to the principal. Sadler v. Fireman’s Fund Ins. Co., 1932, 185 Ark. 480, 47 S.W.2d 1086. The policy itself provided that insurance would be suspended while the hazard was increased unless written permission for the change in occupancy was attached to the policy. No written permission was ever executed or attached. Accordingly the court originally held that the policy itself negatived any authority of the local agent to waive its provisions. National Life & Accident Ins. Co. v. Broy-les, 1930, 197 Ark. 113, 122 S.W.2d 603; National Union Fire Ins. Co. v. School District No. 55, 1916, 122 Ark." }, { "docid": "22553733", "title": "", "text": "Me. Justice Stone delivered the opinion of the Court. The plaintiff brought this action in t'he circuit court for Clatsop County, Oregon, as beneficiary of á policy by which the defendant had insured the life of her husband, Anton Stipcich. The case was removed for diversity of citizenship to the United States district court for Oregon. The company defended principally on the ground that Stipcich, after applying for the insurance and before the delivery of the policy and payment of the first premium, had suffered a recurrence of a duodenal ulcer, which later caused his death, and that he failed to reveal this information to the company. It was shown on the trial by uncontradicted evidence that after his application Stipcich consulted two physicians and that they told him that an operation for the removal of the ulcer was necessary. Plaintiff then made tender of evidence to the effect that Stipcich had communicated this information to Coblentz, the defendant’s agent who had solicited the policy, and that the visit to the second doctor was made at Coblentz’ request to confirm the diagnosis of the first. The proffered evidence was excluded and, at the close of the whole case and over plaintiff’s objection, the court directed a verdict,for the defendant, stating that it did so because Stipcich was under a duty to. inform the defendant of his knowledge of the serious ailment of which he had learned after making application for insurance; and that he had failed in that duty since his communication of the facts to Coblentz did not amount to notice of them; to the insurance company. The case was taken on writ of error to the court of appeals for the ninth circuit. That court certified to this, certain questions of law presented by the case. Jud. Code, § 239. Without answer-, ing, we ordered the entire record to be sent up and the case is here as though on writ of error.. An insurer may of course assume the risk of such' changes in the insured’s health as may occur between the date of application and the" }, { "docid": "3999927", "title": "", "text": "Kennedy v. Occidental Life Ins. Co., 18 Cal.2d 627, 117 P.2d 3, Parker v. California State Life Ins. Co., 85 Utah 595, 40 P.2d 175, are not helpful because they are all readily distinguishable from this case. They are cases in which the courts ruled that, by the terms of the policies in suit, or by the terms of offers to reinstate made by the insurers, the deposit of past due premiums in the mail effected reinstatement. The appellant contends that the communications sent by the insurer to the insured, calling attention to the lapse of his policy and urging him to send in the past due premium and to reinstate his insurance, amounted to offers to reinstate the policy as soon as the premium was deposited in the mail. We think that these communications are not reasonably susceptible of such a construction. In any event, the insured did not so interpret them, since he applied for reinstatement in accordance with the terms of his policy. Compare McCann v. Supreme Tribe of Ben Hur, 171 Ark. 614, 285 S.W. 361, 363. The insurer may have designated the United States Post Office Department to receive premiums and transmit them, but it had not authorized that Department to act for it in determining whether past due premiums and applications for reinstatement should be accepted. The appellant’s contention that the insurer, by depositing on December 23, 1940, the insured’s check for his past due premium, and by not unconditionally tendering to the appellant a return of the premium payment, waived the right to deny liability, we regard as untenable. The check was sent to the insurer for the purpose of effecting a reinstatement of the policy to cover accidental death occurring after the check and reinstatement application had been received and accepted by the insurer. Therefore, the receipt and acceptance of the check could not be treated as indicative of an intention on the part of the insurer to treat the policy as reinstated prior to December 23, 1940. In addition, the evidence clearly showed that, at the time the insurer accepted the" }, { "docid": "4633163", "title": "", "text": "Receiver claimed that because the viators knew at the time they purchased their policies that they were going to assign the policies to an entity that had no direct interest in their continued life, the policies were void ab initio and subject to rescission. The district court agreed and granted summary judgment to the Receiver. However, under Ohio law, it is well settled that “ ‘a failure by the insured to disclose conditions affecting the risk, of which he is aware, makes the contract voidable at the insurer’s option.’ ” Buemi v. Mutual of Omaha Ins. Co., 37 Ohio App.3d 113, 524 N.E.2d 183, 186 (1987) (quoting Stipoich [Stipcich] v. Metro. Life Ins. Co., 277 U.S. 311, 48 S.Ct. 512, 72 L.Ed. 895 (1928)) .(emphasis added); see also Metro. Life Ins. Co. v. Felix, 73 Ohio St. 46, 75 N.E. 941, 943 (1905) (noting insured’s right to rescind policy and demand return of premiums if policy is void due to lack of insurable interest, but expressly conditioning rescission upon “there being no fraudulent conduct by the beneficiary”); Keckley v. Coshocton Glass Co., 86 Ohio St. 213, 99 N.E. 299, 301 (1912) (“[I]t has been held that the want of insurable interest is available only to the insurer[.]”); Pierce v. Metro. Life Ins. Co., 46 Ohio App. 36, 187 N.E. 77, 77 (1933) (“The force of the opinion in [.Keckley ] is that the only person entitled to object on the ground that the beneficiary has no insurable interest is the insurance company issuing the policy, and not the parties claiming an interest in the fund.”); Endress v. Ins. Co., 1 Ohio Law Abs. 553 (Ohio Ct.App. June 27, 1923) (because insured plaintiff knew at time she paid premiums that she had no insurable interest, she cannot recover paid premiums on void policy); Low v. Union Cent. Life Ins. Co., 6 Ohio Dec. Reprint 1088 (1881) (“The insured was not in the position to say that his own misrepresentations should void the policy.”). The Receiver’s proposed rule— that an insured who commits insurance fraud may announce the fraud and receive a" }, { "docid": "2518240", "title": "", "text": "“A general agent clothed with power to solicit insurance, receive the application and forward it to the company, receive and deliver the policy and collect the premium, has power to waive a condition of the policy notwithstanding that power is negatived by provisions in the policy and his contract of employment.” In Reinhardt v. Security Insurance Company, 321 Ill.App. 324, 53 N.E.2d 13, the insurer sought to avoid liability on the grounds that its policy contained a provision that the insured building should be used only for residential purposes. Instead, it was occupied by a tavern when destroyed by fire. The agency which wrote the policy had knowledge that the insured building'was occupied as a tavern. The issues before the court were whether the person who solicited the insurance was. the general agent of the insurer and, if so, whether his knowledge as to use was attributable to the insurer.’ The court in deciding against the insurer stated 321 Ill.App. at page 331, 53 N.E.2d at page 17: “Agents of an insurance company who are authorized to solicit and sell insurance, deliver policies and collect premiums are general agents of the company, and as such have power to waive conditions in an insurance policy and notice to them is notice to the company.” A case of similar purport is Beddow v. Hicks, 303 Ill.App. 247, 257, 25 N.E.2d 93, 97, where the court stated: “An insurance company that knowingly takes a premium for a policy under conditions that would render it inválid, will not be permitted to say that it is not a binding contract for that reason. In all such cases\" the company yrill be regarded as having the same knowledge of the conditions and situation of the property as. is possessed by the agent transacting the business for it. [Citing Illinois cases.]” In Scott v. Bankers’ Auto Insurance Association, 224 Ill.App. 606, 610, the court quoted from an Illinois Supreme Court decision, Phenix Ins. Co. v. Hart, 149 Ill. 513, 522, 36 N.E. 990, 993, as follows: “ ‘In this state, however, the decisions are uniform that notice" }, { "docid": "22553742", "title": "", "text": "the application and policy to the contrary are void and of no effect whatever.” Provisions of this character are controlling when inconsistent with the terms of a. policy issued after their enactment National Union Fire Insurance Co. v. Wanberg, 260 U. S. 71; Continental Life Insurance Co. v. Chamberlain, 132 U. S. 304; Whitfield v. Aetna Life Insurance Co., 205 U. S. 489. Here the statute does more than provide, that the soliciting agent in matters relating to the application and policy does not represent the insured. In connection with those matters it makes him the agent of the company, a phrase which would be meaningless unless the statute when applied to the facts of the case indicated in what respects he represented the company. Here the statute in terms defines the scope óf his agency to the extent that he is stated to represent the company “ in all matters relating to the application and the policy issued in consequence” of it. We. need-not inquire what are the outer limits of that authority, but we think this language plainly makes him the representative of the company in connection with all those matters which, in the usual course of effecting insurance, are incidental t-o the application and the delivery of the policy. Within the requirements of the statute the company may provide by stipulations in the application or other appropriate notice for a suitable method of giving the information, by writing,- in a supplemental application or otherwise, or may stipulate, as is not unusual, that the ¡insurance shall not attach on delivery of the policy unless the insured is in good health. To say that under this statute the company’s agent to solicit and receive the application and deliver the policy is not its agent also to receive disclosures which supplement the application and which vitally affect the validity of the insurance if not disclosed,-is to disregard its language and ignore the obvious purpose of such legislation to require the company to provide some agency-within the state with which the insured may safely deal in matters relating to his application." }, { "docid": "22553743", "title": "", "text": "we think this language plainly makes him the representative of the company in connection with all those matters which, in the usual course of effecting insurance, are incidental t-o the application and the delivery of the policy. Within the requirements of the statute the company may provide by stipulations in the application or other appropriate notice for a suitable method of giving the information, by writing,- in a supplemental application or otherwise, or may stipulate, as is not unusual, that the ¡insurance shall not attach on delivery of the policy unless the insured is in good health. To say that under this statute the company’s agent to solicit and receive the application and deliver the policy is not its agent also to receive disclosures which supplement the application and which vitally affect the validity of the insurance if not disclosed,-is to disregard its language and ignore the obvious purpose of such legislation to require the company to provide some agency-within the state with which the insured may safely deal in matters relating to his application. See Continental Life Insurance Co. v. Chamberlain, supra. Much reliance is placed by respondent on Mutual Life Insurance Co. v. Hilton-Green, 241 U. S. 613, where a somewhat similar statute was involved. 'But there answers known by the insured and the agent to be false were written into the signed application by the agent. Such fraudulent representations known and participated in by the insured, obviously could not have estopped the company, but there is' nothing in the present case to suggest that the insured was a party to or intended any concealment from the company. The defendant also argues that it is not affected by the disclosures to the agent because the application provided: “ That any statement made to or by, or any knowledge on the part of, any agent, medical examiner or any other person as to any facts pertaining to the Applicant shall not be considered as having been made to or brought to the knowledge of the Company unless stated in either part A or B of this application.” But when" }, { "docid": "9769312", "title": "", "text": "entitled to a judgment on the policy as a matter of law. In the leading case of Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 48 S.Ct. 512, 72 L.Ed. 895 (1928), the issue before the Supreme Court was whether an applicant for life insurance owed a duty of informing the insurer of a materia] change in his health, which occurred subsequent to completion of the application for insurance but prior to the effective date of the policy. The Court answered in the affirmative and gave the following reasons for compelling full disclosure by the insured: “Insurance policies are traditionally contracts uberrimae fidei and a failure by the insured to disclose conditions affecting the risk, of which he is aware, makes the contract voidable at the insurer’s option. [Citations omitted.] “Concededly, the modern practice of requiring the applicant for life insurance to answer questions prepared by the insurer has relaxed this rule to some extent, since information not asked for is presumably deemed immaterial. [Citations omitted.] “But the reason for the rule still obtains, and with added force, as to changes materially affecting the risk which come to the knowledge of the insured after the application and before delivery of the policy. For even the most unsophisticated person must know that, in answering the questionnaire and submitting it to the insurer, he is furnishing the data on the basis of which the company will decide whether, by issuing a policy, it wishes to insure him. If, while the company deliberates, he discovers facts which make portions of his application no longer true, the most elementary spirit of fair dealing would seem to require him to make a full disclosure. If he fails to do so the company may, despite its acceptance of the application, decline to issue a policy, [citations omitted] or, if a policy has been issued, it has a valid defense to a suit upon it. [Citations omitted].” 277 U.S. at 316, 317, 48 S.Ct. at 513, 514. Britt thus had a duty to inform ITT of the impairment of his health and to disclose the details" }, { "docid": "3999928", "title": "", "text": "Ark. 614, 285 S.W. 361, 363. The insurer may have designated the United States Post Office Department to receive premiums and transmit them, but it had not authorized that Department to act for it in determining whether past due premiums and applications for reinstatement should be accepted. The appellant’s contention that the insurer, by depositing on December 23, 1940, the insured’s check for his past due premium, and by not unconditionally tendering to the appellant a return of the premium payment, waived the right to deny liability, we regard as untenable. The check was sent to the insurer for the purpose of effecting a reinstatement of the policy to cover accidental death occurring after the check and reinstatement application had been received and accepted by the insurer. Therefore, the receipt and acceptance of the check could not be treated as indicative of an intention on the part of the insurer to treat the policy as reinstated prior to December 23, 1940. In addition, the evidence clearly showed that, at the time the insurer accepted the check, it was without knowledge of the insured’s death, and that, when informed of his death, it immediately notified the appellant that the policy was not in force at the time that death occurred, and that she was entitled to the return of the premium. It is apparent, also, that a tender of this premium payment to the appellant would have been futile, since she was contending that the payment of the premium had effected a reinstatement of the policy as of December 21, 1940. “A tender is not required where it is evident that it will not be accepted.” Dickinson v. Atkins, 132 Ark. 84, 200 S.W. 817, 820. See, also, McCann v. Su preme Tribe of Ben Hur, 171 Ark. 614, 285 S.W. 361, 363; Capital Fire Ins. Co. v. Shearwood, 87 Ark. 326, 112 S.W. 878; Home Fire Ins. Co. v. Wilson, 109 Ark. 324, 159 S.W. 1113, 1115; Sperr v. East & West Ins. Co., 199 Ark. 600, 135 S.W.2d 327, 329. The court below was of the opinion that the" }, { "docid": "8992575", "title": "", "text": "and obtained the new application, Revere’s underwriting decisions had already been set in cement. These pererrations go nowhere. Statements made in an insurance application constitute continuing representations. See Ayers, 352 N.E.2d at 222. The plaintiffs representations anent his health were still current when the replacement policy was delivered. Consequently, in the absence of a significant intervening event excusing disclosure (say, the dawning of the incontestability period), the material misrepresentations as to medical history on the first application, in circumstances where Borden was chargeable with knowledge of the truth, warranted rescission not only of the original policy but also of the replacement policy. Cf, e.g., Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 316-18, 48 S.Ct. 512, 513-14, 72 L.Ed. 895 (1928) (if at any time before a policy issues, the insured knows facts which make portions of his application untrue, and does not make full disclosure, the company will have a right to rescind the policy); Mutual Life Ins. Co. v. Bohlman, 328 F.2d 289, 293 (10th Cir.1964) (similar). In sum, the evidence supported rescission of both the original policy and the replacement policy, based on the material misrepresentations contained in the original application — an application which was knowingly false and which the insured, in respect to medical history, made no effort to correct or amplify at any time. V. BAD FAITH Borden charged Revere with statutory bad faith in four respects: Revere did not pay benefits on time, forced him to use the new, more onerous reporting form, fraudulently manipulated a policy exchange, and eventually stopped benefit payments altogether. Borden also asserted bad faith claims (statutory and common law) based on Revere’s purported misuse of medical authorizations which he delivered as a condition to receiving his benefits. He alleged that the authorizations were transmitted so that Revere could confirm disability, but that the insurer used them to gather information about Borden’s checkered medical past. These animadversions were all commingled, without objection, and sent to the jury in a single question on the verdict sheet (Question No. 3). The jury answered the question in the negative. Borden harangues" }, { "docid": "1847055", "title": "", "text": "App.) 274 S. W. 323; Grippo v. Davis, 92 Conn. 693, 104 A. 165. And the decree of cancellation is conditioned upon payment into the registry of the court of the amount paid as premiums with accrued interest thereon. That is all equity requires. The policy cannot he sustained for an additional reason. The application expressly provided that the insurance should not go into effect unless the applicant be in the same condition of insurability as shown therein at the time the application was accepted and the policy issued and further that he continue in good health until the policy was delivered and the first premium paid thereon. He entered the hospital under the name of “Harry Shaner” five days after the application was signed for treatment for Buerger’s disease and was confined there for that purpose at the time the application was accepted and the policy issued. He then had a far advanced case of that serious malady and remained there more than two months during which time he submitted to an operation for the alleviation of his condition. He had suffered from the disease almost three years and had been in hospitals twice before. Manifestly he was not in the same condition of insurability at the time the application was accepted and the policy issued as that shown in the application. And he was not in good health at the time the policy was delivered and the first premium paid thereon. The provision is a valid and enforceable one. The simplest rudiments of fairness require an applicant for insurance to disclose to the company any adverse change in his physical condition occurring after the application is submitted and before the policy is issued and delivered. Failure to do that here rendered the policy unenforceable because in virtue of the contractual provision it did not go into effect. Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311, 48 S. Ct. 512, 72 L. Ed. 895; Hurt v. New York Life Ins. Co. (C. C. A.) 51 F.(2d) 936; Gill v. Mutual Life Ins. Co. (C. C. A.) 63" }, { "docid": "18108063", "title": "", "text": "if we were to agree with the Blatz court on this point, it would not matter to the resolution of the present controversy. Whether or not Pruco can rely on the executed copy of the application, it can rely on the unexecuted copy that was in fact attached to the policy at delivery and clearly informed Coops that the policy would not take effect unless his health was as stated in the application at the time he accepted the policy and paid his first premium. Coops knew that his health was not as stated in the application, but he did not correct this information when given the chance at the time of delivery and instead began to pay his premiums. Finally, Smith observes that the policy specifies a “contract date” of August 27, 2007, and defines “contract date” to be the same as “issue date.” He argues that the policy was therefore issued on August 27, 2007, which was before he received his cancer diagnosis on September 7. According to Smith, this means that Pruco issued the policy based on information that was entirely truthful, and he had no duty to disclose a diagnosis he received after the policy was already in effect. However, plaintiff also acknowledges that the appli cation, if admissible, clearly states that the contract would not take effect until delivery was made and accepted, his health remained the same as stated in the application, and the first premium was paid. Because we conclude that the application was properly admitted as evidence at the bench trial, Pruco could rely on it to establish that the contract could not come into effect unless and until those conditions were satisfied. See Stipcich v. Metro. Life Ins. Co., 277 U.S. 311, 316, 48 S.Ct. 512, 72 L.Ed. 895 (1928) (“[B]oth by the terms of the application and familiar rules governing the formation of contracts no contract came into existence until the delivery of the policy, and at that time the insured had learned of conditions gravely affecting his health, unknown at the time of making his application.”). Smith concedes that" }, { "docid": "11951000", "title": "", "text": "the company’s representative, for while the record does not show that he was aware of his infirmity when he answered the questions in the application, he knew the grave character of his illness when he received the report of his examination at the sanitorium, and, nevertheless, failed to disclose it to the company. Under these circumstances, we have no doubt as to the correctness of the conclusions of the District Judge. The provisions of the application under consideration constituted conditions precedent to a liability on the contract, and as they were never fulfilled, the policy of insurance did not go into effect. See, Oliver v. Mutual Life Ins. Co., 1899, 97 Va. 134, 33 S.E. 536. We take this view as to the health clause in the policy, whether it be given a literal interpretation, or the interpretation more favorable to the insured which restricts its meaning to changes in health after the company’s medical examination. The authorities which hold the latter rule make it conditional upon the absence of concealment or misrepresentation on the part of the insured. The Supreme Court of the United States emphasizes the duty of an applicant for insurance to inform the insurer fully as to changes in his physical condition seriously affecting his health after signing the application and before the delivery of the policy. In Stipcich v. Metropolitan Insurance Co., 1928, 277 U.S. 311, at pages 315, 316, 317, 48 S.Ct. 512, at page 513, 72 L.Ed. 895, the court said: “An insurer may, of course, assume the risk of such changes in the insured’s health as may occur between the date of application and the date of the issuance of a policy. Where the parties contract exclusively on the basis of conditions as they existed at the date of the application, the failure of the insured to divulge any later known changes in health may well not affect the policy. * * * But there is no contention here that the parties contracted exclusively on the basis of conditions at the time of the application. * * * “Insurance policies are traditionally" }, { "docid": "9769311", "title": "", "text": "of the first premium payment and second, the actual date of the premium payment — ranging, according to the parties’ contentions, anywhere from February 5, the date of the cheek for first premium, to February 13, the date on which the check was paid by the bank. However, it is unnecessary to resolve either of these disputes in the disposition of the case. It is undisputed that on February 3, Britt was informed by Dr. Bryant that, in his professional opinion, Britt was suffering from some type of kidney ailment, probably a kidney stone, which required hospitalization for additional tests. The ITT representative testified that this condition alone would have caused ITT to reject the first premium check, and thus the contract would not have been consummated. Because of the failure of Britt to disclose that representations made in his application for insurance were no longer true when the policy became effective on receipt of first premium payment, which changes if known by the insurance carrier would have caused it to refuse coverage, ITT is entitled to a judgment on the policy as a matter of law. In the leading case of Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 48 S.Ct. 512, 72 L.Ed. 895 (1928), the issue before the Supreme Court was whether an applicant for life insurance owed a duty of informing the insurer of a materia] change in his health, which occurred subsequent to completion of the application for insurance but prior to the effective date of the policy. The Court answered in the affirmative and gave the following reasons for compelling full disclosure by the insured: “Insurance policies are traditionally contracts uberrimae fidei and a failure by the insured to disclose conditions affecting the risk, of which he is aware, makes the contract voidable at the insurer’s option. [Citations omitted.] “Concededly, the modern practice of requiring the applicant for life insurance to answer questions prepared by the insurer has relaxed this rule to some extent, since information not asked for is presumably deemed immaterial. [Citations omitted.] “But the reason for the rule still obtains," }, { "docid": "11951001", "title": "", "text": "part of the insured. The Supreme Court of the United States emphasizes the duty of an applicant for insurance to inform the insurer fully as to changes in his physical condition seriously affecting his health after signing the application and before the delivery of the policy. In Stipcich v. Metropolitan Insurance Co., 1928, 277 U.S. 311, at pages 315, 316, 317, 48 S.Ct. 512, at page 513, 72 L.Ed. 895, the court said: “An insurer may, of course, assume the risk of such changes in the insured’s health as may occur between the date of application and the date of the issuance of a policy. Where the parties contract exclusively on the basis of conditions as they existed at the date of the application, the failure of the insured to divulge any later known changes in health may well not affect the policy. * * * But there is no contention here that the parties contracted exclusively on the basis of conditions at the time of the application. * * * “Insurance policies are traditionally contracts uberrimse fidei and a failure by the insured to disclose conditions affecting the risk, of which he is aware, makes the contract voidable at the insurer’s option. jji sj; “Concededly, the tnodern practice of requiring the applicant for life insurance to answer questions prepared by the insurer has relaxed this rule to some extent, since information not asked for is presumably deemed immaterial. * * * “But the reason for the rule still obtains, and with added force, as to changes materially affecting the risk which come to the. knowledge of the insured after the application and before delivery of the policy. For even the most unsophisticated person must know that, in answering the questionnaire and submitting it to the insurer, he is furnishing the data on the basis of which the company will decide whether, by issuing a policy, it wishes to insure him. If, while the company deliberates, he discovers facts which make portions of his application no longer true, the most elementary spirit of fair dealing would seem to require him" } ]

[ { "docid": "22656632", "title": "", "text": "of cases to vindicate the due process protection that follows from Winship, the same could also be said of the vast majority of other federal constitutional rights that may be implicated in a state criminal trial. It is the occasional abuse that the federal writ of habeas corpus stands ready to correct. Brown v. Allen, supra, at 498-501 (opinion of Frankfurter, J.). The respondents have argued nonetheless that whenever a person convicted in a state court has been given a “full and fair hearing” in the state system — meaning in this instance state appellate review of the sufficiency of the evidence — ■ further federal inquiry — apart from the possibility of discretionary review by this Court — should be foreclosed. This argument would prove far too much. A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. See 28 U. S. C. §§ 2254 (b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right — is not one that can be so lightly abjured. The constitutional issue presented in this case is far different from the kind of issue that was the subject of the Court’s decision in Stone v. Powell, supra. The question whether a defendant has been convicted upon inadequate evidence is central to the" } ]

[ { "docid": "5836205", "title": "", "text": "presumptively prejudicial. Id. at 161. It reviewed the aggravating and mitigating factors and de termined that Judge Letsinger’s use of a pre-sentence psychological questionnaire would have made no difference in the sentence given. Id. at 162. The court found that the factual errors made in its opinion on direct appeal did not make any difference in its decision. Id. at 163. Finally, the court held that Williams was not denied due process in the post-conviction proceedings when the trial court excluded certain witnesses Williams sought to present. Id. Thus, the court unanimously affirmed the decision of the trial court denying post-conviction relief. The United States Supreme Court denied Williams’ petition for certiorari on May 15, 2000. Williams v. Indiana, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). He filed his petition for habeas corpus relief with this court on May 12, 2000. II. Standard of Review A claim under 28 U.S.C. § 2254 requires the federal habeas court to ensure that the state criminal conviction was not achieved at the expense of the petitioner’s constitutional rights. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), described the role of the federal district courts in habeas proceedings: A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal ha-beas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the “finality” of a" }, { "docid": "4030219", "title": "", "text": "that the trial judge did not rely on the facts surrounding the murder in determining Walker’s sentence. We do not address this factual issue because we conclude that the trial judge could properly rely on this information. Sentencing courts must have wide latitude in their decisions as to punishment. Brothers v. Dowdle, 817 F.2d 1388, 1390 (9th Cir.1987). Generally, a federal appellate court may not review a state sentence that is within the statutory limits. Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir.1984), cert. denied, 469 U.S. 1229, 105 S.Ct. 1229, 84 L.Ed.2d 367 (1985). We may vacate a sentence, however, if it was imposed in violation of due process. Brothers, 817 F.2d at 1390. The due process clause prohibits a trial judge from enhancing a sentence based on materially false or unreliable information, United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986), or based on a conviction infected by constitutional error. United States v. Tucker, 404 U.S. 443, 447-48, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972). We have held, however, that a sentencing judge may rely on “facts relating to a prior acquittal” in imposing an appropriate sentence. United States v. Morgan, 595 F.2d 1134, 1135-37 (9th Cir.1979). Although Morgan involved a prior acquittal rather than a contemporaneous acquittal, we find the case to be controlling. Sentencing judges must be able to rely on as much information about a defendant as possible in order to fashion a punishment best tailored to the particular defendant. Id. at 1137. The trial judge clearly knew that' Walker was acquitted of the murder charge, and thus knew to treat the facts with caution. It was perfectly proper, however, for the judge to consider the facts that the victims were killed and that during the course of the crime Walker must have been aware that it was unlikely they were going to be permitted to live. There was more than a “minimal factual basis,” United States v. Petitto, 767 F.2d 607, 611 (9th Cir.1985), to justify consideration of the result of the crimes in which Walker participated, even though he was" }, { "docid": "7858723", "title": "", "text": "the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal ha-beas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right — is not one that can be so lightly abjured. Id. at 323, 99 S.Ct. at 2791 (citation omitted). The Congress of the United States has codified the holdings of Jackson and its progeny through the AEDPA, which amended 28 U.S.C. § 2254, in relevant part, as follows: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). When Congress passed the AEDPA, the standards of review that the court must apply to the merits of a petition for writ of habeas corpus under § 2254 also changed significantly. Section 2254 was further amended in pertinent part: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved" }, { "docid": "3612925", "title": "", "text": "SWYGERT, Senior Circuit Judge. Pro se petitioner, Bernard Williams, appeals the denial of his petition for a writ of habeas corpus. In his petition, Williams asserts that there was insufficient evidence to support a finding that he was an habitual offender. Ind.Code § 35-50-2-8. The district court rejected that contention. For the following reasons, we hold that there was insufficient evidence to support a finding beyond a reasonable doubt that Williams was an habitual offender. We reverse the district court and grant petitioner’s request for habeas relief. I. Petitioner Williams was convicted by a jury of theft in the Superior Court of Allen County, Indiana, and in a separate proeeeding he was found, by the same jury, to be an habitual offender pursuant to Ind.Code § 35-50-2-8. Williams was sentenced to four years imprisonment on the theft charge and to a consecutive term of thirty years as an habitual offender. The petitioner appealed to the Indiana Supreme Court from his conviction as an habitual offender. His sole claim of error was that there was insufficient evidence to support the finding that he was an habitual offender. The Indiana Supreme Court affirmed the conviction by a divided court. Williams v. State, 424 N.E.2d 1017 (Ind.1981). Williams then filed a habeas petition in the federal district court, raising the same contention he had made in the Indiana Supreme Court. The district court dismissed the petition, finding no basis for habeas relief. Because petitioner challenges the sufficiency of the evidence presented at the habitual offender proceeding, we will review the evidence presented at that proceeding in some detail. The habitual offender proceeding commenced with a motion in limine by the state to prevent the defense from mentioning the actual sentence the defendant would receive should he be found to be an habitual offender. The court granted the state’s motion and, upon a request for clarification, ruled that the motion also pertained to mentioning sentences that the petitioner received on any of his previous convictions. The evidentiary hearing began with the state calling the attorney who represented petitioner on a 1971 forgery conviction. The" }, { "docid": "4481115", "title": "", "text": "dual representation of the petitioner and Evans, and (3) the state waived its waiver defense by responding to the merits of the petitioner’s claim in the state post-conviction proceeding. The district court denied the petitioner’s request for relief on March 3, 1983. The district court held that while the petitioner had exhausted his state court remedies, he had failed to show the necessary cause and prejudice to overcome waiver of the confrontation claim by his failure to raise it at trial or on direct appeal. On appeal, the petitioner asserts that his right to confront and cross-examine witnesses was denied in Indiana state court and that he has not waived his right to address the confrontation issue on appeal. II. A. Waiver of Right to Address Confrontation Issue on Appeal According to 28 U.S.C. § 2254(a), a state prisoner is entitled to habeas corpus relief in a federal court only if he is being held “in custody in violation of the Constitution or laws or treaties of the United States.” Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982). Before determining whether a state prisoner’s rights have been violated, however, a court must decide whether the prisoner has waived his claim for federal habeas corpus relief by failing to comply with such state procedural rules as those requiring a defendant to object at trial or to raise an issue on direct appeal. Id. at 126 n. 28, 102 S.Ct. at n. 28; Williams v. Duckworth, 724 F.2d 1439, 1442 (7th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 143, 83 L.Ed.2d 82 (1984). The Supreme Court has observed that a federal court’s decision whether to examine a state prisoner’s constitutional claims when the prisoner has failed to abide by applicable state procedural rules implicates two types of concerns: (1) Congress’s interest in providing a federal forum for the vindication of state prisoners’ constitutional rights, and (2) the state’s interest in the integrity of its procedural rules and in the finality of its judgments. Reed v. Ross, — U.S.-, 104 S.Ct. 2901, 2907, 82 L.Ed.2d 1" }, { "docid": "15816738", "title": "", "text": "2781, 2789, 61 L.Ed.2d 560, reh’g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979): “[T]he relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) We find that the evidence here, though circumstantial, was sufficient to satisfy this standard. VII. SENTENCING Petitioner contends that he was denied due process of law when the trial court sentenced him to the maximum term of imprisonment without presentence investigation. Petitioner was convicted of a first degree felony. He had no prior conviction record. His sentence of 7 to 25 years was within the statutory guidelines set forth in Ohio Rev.Code Ann. § 2929.11(B)(1)(a) (Anderson Supp.1985). “As a general rule, a federal court will not review state sentencing determinations that fall within statutory limits.” Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir.1984), cert. denied, 469 U.S. 1229, 105 S.Ct. 1229 (1985) (citing So-lem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Rummel v. Estelle, 445 U.S. 263,100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)). Moreover, under Rule 32.2 of the Ohio Rules of Criminal Procedure, presen-tence investigation is required in felony cases only when the court is granting pro bation. Thus, petitioner has made no showing that the sentence imposed violated his due process rights. VIII. Accordingly, petitioner’s petition for writ of habeas corpus is denied." }, { "docid": "3574504", "title": "", "text": "The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconvietion remedies to redress possible error. See 28 U.S.C. § 2254(b), (d). What it does not presume is that these state proceedings ■will always be without error in the constitutional sense. The duty of a federal ha-beas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right — is not one that can be so lightly abjured. Id. at 323, 99 S.Ct. at 2791. The Supreme Court in Jackson held: We hold that in a challenge to a conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt. Id. (footnote omitted). See also Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir.1987), cert. den., 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O’Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. den., 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. den., 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. den., 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987). A review of the record in the light favorable to the prosecution convinces the court that a rational trier of fact could readily have found the petitioner guilty beyond a reasonable doubt of the crimes for which he there stands convicted. Following Jackson, supra, there" }, { "docid": "18987564", "title": "", "text": "corpus statute presumes the norm of a fair trial in the state court and adequate state posteonviction remedies to redress possible error. See 28 U.S.C. § 2254(b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal ha-beas corpus court to appraise a claim that constitutional error did occur—reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right—is not one that can be so lightly abjured. Id. at 323, 99 S.Ct. at 2791. The Supreme Court in Jackson held: We hold that in a challenge to a conviction brought under 28 U.S.C. § 2254—if the settled procedural prerequisites for such a claim have otherwise been satisfied—the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt. Id. (footnote omitted). See also Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O’Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. denied, 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987). A review of the record in the light most favorable to the prosecution convinces the court that a rational trier of fact could readily have found the petitioner guilty beyond a reasonable doubt of murder and attempted murder. Following Jackson, supra, there is an increasingly long line of cases in this circuit that suggest that the" }, { "docid": "18987562", "title": "", "text": "MEMORANDUM AND ORDER ALLEN SHARP, Chief Judge. On February 7, 1994, pro se petitioner, Michael R. Steele, an inmate at the Indiana State Prison, Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The return filed by the respondents on August 8, 1994, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). This petitioner entered pleas of guilty in the Elkhart Circuit Court, Goshen, Indiana, of murder and attempted murder of a police officer. The Honorable Gene R. Duffin presided. The petitioner is presently serving a 60-year sentence imposed for murdering a police officer, and when that sentence is served, there is a consecutive 50-year sentence for the attempted murder of another police officer. The state court record in six volumes was filed on February 7, 1994, and has been examined here. When these charges were pending in the Elkhart Circuit Court, this petitioner was facing a possible death penalty and apparently entered a plea of guilty to avoid the imposition of the death penalty. He entered a plea of guilty to both charges and was sentenced on August 31, 1989. He took a direct appeal to the Supreme Court of Indiana, and that court unanimously upheld the imposition of consecutive sentences, as reported in Steele v. State, 569 N.E.2d 652 (Ind.1991). At this point, two observations are in order. The first is that under 28 U.S.C. § 2254(d), the facts unanimously found by the Supreme Court of Indiana, speaking through Justice Givan, at 569 N.E.2d 652-653, are presumed correct. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), stated: A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas" }, { "docid": "3574502", "title": "", "text": "(1989). It is also elementary that the federal question jurisdiction of the district court under § 2254 cannot be invoked simply to require state officials to comply with state law or to review alleged violations of state law. That concept was pointedly and recently made by Judge Bauer in Stephens v. Miller, 13 F.3d 998 (7th Cir.1994) en banc, as follows: Stephens’ first contention need not detain us long. He argues that we should grant his petition because the Indiana trial court and the Indiana Supreme Court misapplied the Indiana Rape Shield Statute under Indiana law. That may be, but whether the Indiana courts correctly applied their own law is, by itself, no concern of ours. Federal habeas actions do not lie for mere errors of state laws. We ask only whether Indiana denied Stephens his rights under the Constitution, laws or treaties of the United States. We therefore will not consider the merits of his claim that the Indiana courts misapplied their own law. Stephens, 13 F.3d at 1001 (cites omitted). See also Jenkins v. Gramley, 8 F.3d 505 (7th Cir.1993). II. The question with regard to the sufficiency of the evidence requires the district court to examine the evidence in the state record as to whether a reasonable trier of fact, in this ease a state court jury, would find this petitioner guilty beyond a reasonable doubt of the various crimes of which he was convicted in the state trial court in Wisconsin. The relevant formulation is in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Justice Stewart, speaking for the Supreme Court of the United States in Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), stated: A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law." }, { "docid": "3670291", "title": "", "text": "HICKEY, Circuit Judge. Petitioner Whiteley sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against the State of Wyoming charging it had unconstitutionally incarcerated him. At the time of oral argument the court permitted the substitution of Leonard A. Meacham, Warden of the State Penitentiary for the State of Wyoming as the proper respondent appellee. The trial court determined the issues presented on an original and amended petition and denied the application. This is an appeal from that action. Petitioner presents for review the following issues: 1. The trial court’s determination that petitioner had not exhausted his state remedies before filing in the United States District Court was error; 2. The constitutional issues adversely decided by the state court were erroneously adopted as res judicata in the federal habeas proceedings by the trial court; 3. Petitioner’s failure to object to the introduction in evidence of a 1942 judgment and sentence as evidence or prior conviction on an habitual criminal charge does not preclude the consideration by this court; 4. The introduction in evidence of the 1942 judgment and sentence on the charge of recidivism for the purpose of enhancing the guilt of petitioner was prejudicial error; 5. The sentence imposed on petitioner for the commission of the offense of larceny and as an habitual criminal constitutes two sentences for a single crime; 6. Petitioner’s arrest in Laramie, Wyoming, by a Laramie police officer, was illegal and the search and seizure incident thereto was thereby tainted, thus making the admission of the fruits of that search as evidence at petitioner’s trial, on the charge of burglary in 1965, prejudicial error. Neither the record on appeal nor the briefs question the factual determination made by the Supreme Court of the State of Wyoming in its consideration of a direct appeal on the questioned 1965 conviction. Title 28 U.S.C. § 2254 unmistakeably provides that the factual issues determined by the state court shall be presumed to be correct. The foregoing directs us to accept the following as salient facts: “On November 23, 1964, certain business establishments in Saratoga were broken" }, { "docid": "3612938", "title": "", "text": "8. (a) The state may seek to have a person sentenced as an habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions. A person who is found to be an habitual offender shall be imprisoned for an additional fixed term of thirty (30) years, to be added to the fixed term of imprisonment imposed under section 3, 4, 5, 6, or 7 of this chapter. (b) After he has been convicted and sentenced for a felony committed after sentencing for a prior unrelated felony conviction, a person has accumulated two (2) prior unrelated felony convictions. However, a conviction does not count, for purposes of this subsection, if: (1) it has been set aside; or (2) it is one for which the person has been pardoned. (c) If the person was convicted of the felony in a jury trial, the jury shall reconvene for the sentencing hearing; if the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing, under IC 35-4.1-4.3. (d) The jury (if the hearing is by jury), or the court (if the hearing is to the court alone), may find that the person is an habitual offender only if the state has proved beyond a reasonable doubt that the person had accumulated two (2) prior unrelated felony convictions. . The state suggests that, as a federal court, we should defer to the state appellate court’s factual findings in the absence of any of the enumerated exceptions listed in 28 U.S.C. § 2254(d). Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The state has enunciated the general rule of deferral to state court factual findings. This general rule of deferral, under certain circumstances, may even be applied to sufficiency of the evidence claims, see Davis v. Franzen, 671 F.2d 1056 (7th Cir.1982); United States ex rel. Green v. Greer, 667 F.2d 585 (7th Cir.1981); although 28 U.S.C. § 2254(d)(8) provides that" }, { "docid": "1341377", "title": "", "text": "trial court’s judgment of conviction. Petitioner then filed two habeas petitions and one motion for modification of sentence with the state trial court, which the court denied. The Nevada Supreme Court consolidated all three post-conviction applications and affirmed the trial court. Petitioner filed a habeas petition in federal district court, alleging 12 grounds for relief. Petitioner also filed in state trial court a motion to correct an illegal sentence, which the court denied. The Nevada Supreme Court affirmed the trial court, and Petitioner amended his federal habeas petition to include this claim as a thirteenth ground for relief. The district court denied Petitioner’s ha-beas petition. Petitioner timely appeals. STANDARDS OF REVIEW We review de novo a district court’s denial of a habeas petition filed pursuant to 28 U.S.C. § 2254. Gill v. Ayers, 342 F.3d 911, 917 (9th Cir.2003). Ha-beas relief is warranted only if the state court’s decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or resulted in an unreasonable determination of facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. 362, 407-09, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). We review for abuse of discretion a district court’s denial of a request for an evidentiary hearing under AEDPA standards. Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005). A district court abuses its discretion in denying a request for an evidentiary hearing if a petitioner “has alleged facts that, if proven, would entitle him to habeas relief, and ... he did not receive a full and fair opportunity to develop those facts.” Id. at 1167 (internal quotation marks omitted). DISCUSSION Petitioner raises a multitude of issues in his appeal, only two of which warrant discussion. On all other issues, we agree with the district court and affirm its rulings. A. Nevada’s habitual sentencing statute does not violate Apprendi. Petitioner argues that his sentence as a habitual offender under Nevada’s habitual criminal statute, Nev.Rev.Stat. § 207.010, violates Apprendi v. New Jersey, 530 U.S. 466, 120" }, { "docid": "15816737", "title": "", "text": "not give rise to a constitutional issue cognizable in habeas proceedings. See Blake v. Morford, 563 F.2d 248, 250 (6th Cir.1977), cert. denied sub nom., Blake v. Thompson, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978): Combs v. Tennessee, 530 F.2d 695, 698-99 (6th Cir.), cert. denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976). The indictment here had sufficient information to provide petitioner with adequate notice and the opportunity to defend and protect himself against future prosecution for the same offense. Any other deficiencies in the indictment alleged by petitioner are solely matters of state law and so not cognizable in a federal habeas proceeding. See Combs, 530 F.2d at 699; Bell v. Arn, 536 F.2d 123, 125 (6th Cir.1976). VI. SUFFICIENCY OF EVIDENCE Petitioner contends that the evidence was insufficient to convict him of aggravated robbery under Ohio law. The constitutional standard for reviewing the sufficiency of the evidence in habeas cases was set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, reh’g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979): “[T]he relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) We find that the evidence here, though circumstantial, was sufficient to satisfy this standard. VII. SENTENCING Petitioner contends that he was denied due process of law when the trial court sentenced him to the maximum term of imprisonment without presentence investigation. Petitioner was convicted of a first degree felony. He had no prior conviction record. His sentence of 7 to 25 years was within the statutory guidelines set forth in Ohio Rev.Code Ann. § 2929.11(B)(1)(a) (Anderson Supp.1985). “As a general rule, a federal court will not review state sentencing determinations that fall within statutory limits.” Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir.1984), cert. denied, 469 U.S. 1229, 105 S.Ct. 1229 (1985) (citing So-lem v. Helm, 463 U.S. 277," }, { "docid": "3612939", "title": "", "text": "judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing, under IC 35-4.1-4.3. (d) The jury (if the hearing is by jury), or the court (if the hearing is to the court alone), may find that the person is an habitual offender only if the state has proved beyond a reasonable doubt that the person had accumulated two (2) prior unrelated felony convictions. . The state suggests that, as a federal court, we should defer to the state appellate court’s factual findings in the absence of any of the enumerated exceptions listed in 28 U.S.C. § 2254(d). Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The state has enunciated the general rule of deferral to state court factual findings. This general rule of deferral, under certain circumstances, may even be applied to sufficiency of the evidence claims, see Davis v. Franzen, 671 F.2d 1056 (7th Cir.1982); United States ex rel. Green v. Greer, 667 F.2d 585 (7th Cir.1981); although 28 U.S.C. § 2254(d)(8) provides that deferral to the state court factual findings is inappropriate where the findings are not fairly supported by the record. The record in the instant case does not fairly support the determination that Williams was sentenced on his second conviction. We do not agree with the state’s assertion that Williams has not attacked the factual determinations of the Indiana court. Williams’s claim, by its very nature, attacks the factual findings by asserting that there was no evidence presented to show that he was sentenced for the second felony conviction. This is a direct challenge to the state court’s factual determination that there was sufficient evidence presented to prove that he was sentenced for the second felony conviction. . The habitual offender statute provides for a bifurcated proceeding. The second proceeding is tried before the same jury trying the underlying offense. Ind.Code § 35-50-2-8(c). . The statute does not provide for jury discretion in sentencing on an habitual offender count. The jury is charged only with the determination of whether the defendant is an habitual offender. ." }, { "docid": "18987563", "title": "", "text": "a plea of guilty to both charges and was sentenced on August 31, 1989. He took a direct appeal to the Supreme Court of Indiana, and that court unanimously upheld the imposition of consecutive sentences, as reported in Steele v. State, 569 N.E.2d 652 (Ind.1991). At this point, two observations are in order. The first is that under 28 U.S.C. § 2254(d), the facts unanimously found by the Supreme Court of Indiana, speaking through Justice Givan, at 569 N.E.2d 652-653, are presumed correct. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), stated: A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state posteonviction remedies to redress possible error. See 28 U.S.C. § 2254(b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal ha-beas corpus court to appraise a claim that constitutional error did occur—reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right—is not one that can be so lightly abjured. Id. at 323, 99 S.Ct. at 2791. The Supreme Court in Jackson held: We hold that in a challenge to a conviction brought under 28 U.S.C. § 2254—if the settled procedural prerequisites for such a claim have otherwise been satisfied—the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a" }, { "docid": "3574503", "title": "", "text": "v. Gramley, 8 F.3d 505 (7th Cir.1993). II. The question with regard to the sufficiency of the evidence requires the district court to examine the evidence in the state record as to whether a reasonable trier of fact, in this ease a state court jury, would find this petitioner guilty beyond a reasonable doubt of the various crimes of which he was convicted in the state trial court in Wisconsin. The relevant formulation is in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Justice Stewart, speaking for the Supreme Court of the United States in Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), stated: A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconvietion remedies to redress possible error. See 28 U.S.C. § 2254(b), (d). What it does not presume is that these state proceedings ■will always be without error in the constitutional sense. The duty of a federal ha-beas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right — is not one that can be so lightly abjured. Id. at 323, 99 S.Ct. at 2791. The Supreme Court in Jackson held: We hold that in a challenge to a conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial" }, { "docid": "5836206", "title": "", "text": "petitioner’s constitutional rights. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), described the role of the federal district courts in habeas proceedings: A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal ha-beas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right — is not one that can be so lightly abjured. Id. at 323, 99 S.Ct. at 2791 (citation omitted). The Congress of the United States has codified the holdings of Jackson and its progeny through the AEDPA, which amended 28 U.S.C. § 2254, in relevant part, as follows: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). When Congress passed the AED-PA, the standards of review that the court must apply to the merits of a petition for writ of habeas corpus under § 2254 also changed significantly. Section 2254 was further amended in pertinent part: An" }, { "docid": "7858722", "title": "", "text": "both of those causes, Matheney represented himself in a cogent manner. II. Standard of Review As a preliminary matter it does not appear that this petitioner is entitled to a further evidentiary hearing in this Court under 28 U.S.C. § 2254(e)(2) and Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). The factual record presented here is to say the least massive. The request for additional discovery is not well taken under Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). A claim under 28 U.S.C. § 2254 requires the federal habeas court to ensure that the state criminal conviction was not achieved at the expense of the petitioner’s constitutional rights. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), described the role of the federal district courts in habeas proceedings: A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal ha-beas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the “finality” of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right — is not one that can be so lightly abjured. Id. at 323, 99 S.Ct. at 2791 (citation omitted). The Congress of the United States has codified the holdings of Jackson and its progeny through the" }, { "docid": "12062592", "title": "", "text": "JOHNSON, Circuit Judge: This appeal arises from the denial of a petition for habeas corpus relief brought under 28 U.S.C.A. § 2254(d) by an Alabama state prison inmate sentenced to life imprisonment under Alabama’s Habitual Felony Offender Act, Ala.Code Ann. § 13A-5-9(c)(2). We affirm in part and reverse in part. I. FACTS On January 26, 1984, petitioner Jerry Harrison was tried and convicted in Alabama state court of theft of property. In sentencing Harrison, the trial court applied the Habitual Felony Offender Act, Ala. Code Ann. § 13A-5-9(c)(2). The court considered four prior felony convictions to enhance petitioner’s sentence: a March 31, 1965, conviction in California of second-degree burglary based on a plea of nolo contendere; an August 26,1968, conviction in California of owning or possessing a concealable firearm after having been convicted of a felony; and two September 17, 1982, convictions in Alabama of third-degree burglary and receiving stolen property. Theft of property is defined as a Class B felony. Because petitioner had been convicted of at least three prior felonies, the trial judge sentenced him to life imprisonment. See Ala.Code Ann. § 13A-5-9(c)(2). On July 24,1984, petitioner filed his petition for writ of error coram nobis in state court. That petition was denied, and on December 11, 1984, the Alabama Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Harrison v. State, 461 So.2d 53 (Ala.Ct.Crim.App.1984). On August 9, 1985, petitioner filed a second petition for writ of error coram nobis. The trial court dismissed the petition, and the Alabama Court of Criminal Appeals affirmed the dismissal without opinion. Petitioner then filed an unsuccessful petition for habeas corpus relief in state court. On September 19, 1986, petitioner filed this federal petition for writ of habeas corpus in the Middle District of Alabama. An evi-dentiary hearing was held before a United States Magistrate, and on August 5, 1988, the magistrate entered a recommendation that the petition be granted to the extent that the State of Alabama be ordered to resentence petitioner within ninety days or to release him from custody. The district court did not adopt the magistrate’s recommendation." } ]

[ { "docid": "23077945", "title": "", "text": "on this case until the Supreme Court acted definitively. Habig was indicted August 12, 1966. The income tax returns involved there were filed August 12 and 15, 1960. Ha-big contended that the critical date was not when the returns actually were filed, but that when they were due to be filed. In a thoroughly documented opinion which traces the full legislative history of I.R.C. Sections 6513 and 6531, the Supreme Court, in a unanimous opinion written by Mr. Justice For tas, and in effect overruling Hull, held that where the return was filed after the due date, the Statute of Limitations did not begin to run until the date of filing. (That is the date when the alleged crime was committed.) The Court said that when the return is filed prior to the due date, the statute begins to run on the due date. United States v. Habig, 390 U.S. 222, 88 S.Ct 926, 19 L.Ed.2d 1055, decided March 5, 1968, (mandate issued April 1, 1968). The decision in Habig is now binding upon us and therefore appellant’s argument that this action was instituted too late has no merit. II. Appellant further contends that the trial judge committed reversible error in refusing to give to the jury the following specially requested instruction: “If you find that the defendant had discussed this matter with competent tax counsel and that the tax return herein was prepared pursuant to that advice, then you must find that the defendant did not willfully file a false return or make a false statement, and you should bring in a verdict of not guilty.” (Tr. 859) We agree that there is substantial merit in this contention for the following reasons : In Perez v. United States, 297 F.2d 12 (5 Cir. 1961), we held: “It is elementary law that the defendant in a criminal case is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence. * * A charge is erroneous which ignores a claimed defense with such a foundation. * * * The charge to" } ]

[ { "docid": "21569289", "title": "", "text": "period, we now consider what constitutes the appropriate “starting date” for the statute of limitations under section 6531. Both Sams and the Government assert that the statute of limitations for willful failure to pay taxes can be determined as a matter of law. Sams contends that, as a matter of law, the statute begins to run on the date the tax return is due to be filed. The Government, on the other hand, argues that the statute begins to run when the tax return is actually filed. We reject both of these arguments. In general, criminal statutes of limitations begin to run when the crime is complete, i.e., when every element of the crime has been committed. See Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). In the instant action, the trial court instructed the jury that in order to convict Sams, the Government had to show that Sams had a duty to pay taxes, that he failed to pay his taxes, and that his failure to pay was willful. The court noted that since Sams filed his tax returns every year, the key issue was whether Sams “willfully” failed to pay the taxes owed. The determination of when willfulness manifests itself is a factual issue which must be determined by the jury. United States v. Hook, 781 F.2d 1166, 1170-73 (6th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 269, 93 L.Ed.2d 246 (1986). In addition, we agree with the conclusion reached by the Ninth Circuit that since “willfulness is an essential element” of this crime, the statute of limitations “begins to run not when the taxes are assessed or when payment is demanded, but rather when the failure to pay the tax becomes wilful....” United States v. Andros, 484 F.2d 531, 532 (9th Cir.1973) (citations omitted). We hold that the limitations period for willfully failing to pay income taxes cannot be determined by any general rule. Rather, the limitations period begins to run when the taxpayer manifests some act of willful nonpayment. In this case, the trial court specifically instructed" }, { "docid": "9665667", "title": "", "text": "e. g., United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968). Since the indictment was filed in this case on June 15, 1979, it falls just within the statutory six years. The Court also finds that the defendant was “outside the United States” for at least twelve days between the filing of his 1972 return and the filing of the indictment. Consequently, the six-year statute was tolled for those twelve days. See 26 U.S.C. § 6531. Variance The instant indictment presents a rare case of a variance in proof before the commencement of trial. Count Two of the Indictment charges that the defendant attempted to evade paying federal income tax on his 1973 income by filing a false return “[o]n or about January 1, 1972, through on or about April 15, 1974.” The Government concedes, however, that the defendant did not file his 1973 return until on or about June 11, 1974, which is what Count Two, somewhat inconsistently, also charges. “In order for a variance between an indictment and proof at trial to be fatal to the prosecution, it must ‘affect the substantial rights’ of the accused.” United States v. Brozyna, 571 F.2d 742, 745 (2d Cir. 1978) (citing Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). In the instant case, no substantial rights are affected, especially since the defendant will not be surprised by the Government’s proof that his allegedly fraudulent return for 1973 was filed on or about June 11, 1974. Ordinarily, a variance between the actual date of the commission of the offense and the date charged is not grounds for reversal. See, e. g., L. Orfield, Criminal Procedure Under the Federal Rules § 7:120, at 702 (1966 & Supp.1979). And since Count Two itself alleges that the defendant filed his 1973 return on or about June 11, 1974, the grand jury must have known of the evidence of that allegation. Furthermore, the Court rejects the defendant’s contention that the indictment is so incomprehensible that it fails to state a crime. “An indictment is" }, { "docid": "6717866", "title": "", "text": "his employer. Williams was under a continuing obligation to correct his intentional misrepresentations. He failed to do so. Maintaining on file the March 17,1983 W-4 thus constituted an act “the likely effect of which was to mislead or conceal.” Cf. United States v. Copeland, 786 F.2d 768 (7th Cir.1986); United States v. Crocker, 753 F.Supp. 1209 (D.Del.1991). The record thus reflects affirmative acts for tax years 1984 and 1985. Williams next challenges his conviction on Count One, invoking the six-year statute of limitations which he claims should commence when he filed the fraudulent W-4 in March 1983. If Williams is correct the six-year period had elapsed before his indictment was handed up in December 1989. The government counters that the relevant date for limitations purposes is April 16, 1984, the date on which the 1983 return was due. Whether the period runs from the due date of the return, when the defendant has not filed a return, is an issue of first impression for this court. We conclude that the indictment was filed timely. Williams’ offense is the willful failure to file a tax return coupled with an affirmative act to conceal or mislead as to his tax liability. Both elements were proven. Whereas the filing of the fraudulent W-4 was the affirmative act needed to enhance the crime to felony status, the failure to file a return was an essential part of his attempt to evade or defeat his tax liability. We therefore agree with those courts and commentators who have held or suggested that the limitations period for a prosecution under section 7201 in which no tax return was filed begins to accrue the day the return is due. E.g., United States v. Ferris, 807 F.2d 269, 271 (1st Cir.1986) (“If all that defendant had done was to fail to file his 1977 income tax return, then the last act of evasion would have been April 15, 1978, the date the return and tax were due.”), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987); United States v. Crocker, 753 F.Supp. 1209 (D.Del.1991); United States" }, { "docid": "23077943", "title": "", "text": "countered by asking Goldworn whether he knew such losses were not deductible under Section 267 of the Internal Revenue Code of 1954. Gold-worn replied that in his opinion such an “arm’s length transaction” as the one he had described was not within the reach of Section 267. As noted, at the close of the evidence and after the jury was charged by the Court as to the law, appellant was convicted of willful evasion of income tax due in 1957. We now proceed to consideration of the specific issues presented by this appeal. While appellant has set forth a nine-point argument in brief, we find it necessary to rule upon only three of these, which are definitely dis-positive of the appeal. I. The first question presented is whether this prosecution was barred by the expiration of the applicable six-year statute of limitations (IRC of 1954, § 6531). In this and the following remarks, we naturally intimate no opinion as to appellant’s guilt or innocence. Appellant’s 1957 tax return, actually due April 15, 1958, due to extensions granted for filing time, was not submitted until May 9, 1960. The indictment was returned October 12,1965, some five years and five months after the filing of the 1957 return. Since the applicable period of limitation under Section 6531, as interpreted by appellant, would have run from the initial due date for the filing of the return, prosecution would be barred if the statute began to run when the return became due; but it would have been timely instituted if the statute ran only from the date the return was filed. In Hull v. United States, 356 F.2d 919 (5 Cir. 1966), we held that the statute began running from the date the return was due. Appellant contends that our decision in Hull is controlling and, therefore, that institution of prosecution in this case has come too late. When the case was argued, United States v. Habig, D.C., 270 F.Supp. 929, was pending in the Supreme Court. The Limitations issue presented in that case was identical to this one, and we, therefore, withheld judgment" }, { "docid": "12135050", "title": "", "text": "same argument in a different light: He asserts that the aiding and abetting statute is intended to prosecute those who supply false information to the tax preparer, or those who are under a duty to provide information; therefore, the violation of section 7206(2) actually occurred when Celia Loge decided neither to turn over nor to report the bonds to the tax preparer as part of her husband’s gross estate. Under this interpretation of the offense, Hooks’ later concealment and liquidation of the bonds was subsequent to, rather than part of, the conspiracy to cause the filing of a false estate tax return and immaterial to that violation. This theory is similar to the argument presented by the defendant in United States v. Collazo, 815 F.2d 1138 (7th Cir. 1987). Collazo had been convicted of aiding and abetting the unlawful possession of stolen checks. On appeal, he asserted, unsuccessfully, that the evidence of aiding and abetting was insufficient because it had demonstrated that he dealt with the checks only after the act of unlawful possession was completed. 815 F.2d at 1144. In both cases, however, the defendants were willing recipients of the illegally possessed evidence which had been passed to them by other conspirators, and the scheme was furthered by their subsequent actions. See 815 F.2d at 1144-45. The Supreme Court has made clear that the crime of aiding in the fraudulent preparation of a tax return is “committed at the time the return is filed.” United States v. Habig, 390 U.S. 222, 223, 88 S.Ct. 926, 927, 19 L.Ed.2d 1055 (1968). The fraudulent return for the Loge estate was filed March 20, 1980; the bonds were concealed and sold by March 1979. Moreover, Hooks’ attempt to narrow his own involvement to the mere liquidation of assets while Mrs. Loge actually conceptualized the scheme and performed the illegal act of assisting in the preparation of a false tax return must fail. There is substantial evidence in the record that establishes a common scheme to withhold the bonds from the tax preparer, whether the purpose for that nondisclosure and concealment was to" }, { "docid": "18562220", "title": "", "text": "statements made in 1979 and 1983, continuing attempts to evade payment of the 1977 income tax. If all that defendant had done was to fail to file his 1977 income tax return, then the last act of evasion would have been April 15, 1978, the date the return and tax were due. The defendant, however, by deceitful statements continued his tax evasion through January of 1983. In United States v. Meyerson, 368 F.2d 393 (2d Cir.1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967), the court held that the fugitive from justice tolling provision of 26 U.S.C. § 6531 applied to a person who was outside the United States. The issue before us was not a factor in Myerson. The court did state that the statute of limitations for the willful evasion of tax commenced to run from the last date upon which the return was due. Id. at 395. But defendant had argued, as in Habig, that the effective date was the earlier on which he had filed his return. We do not think the court’s statement, which was addressed to a different question than the one before us, is applicable to our case. Another case relied on by defendant is United States v. Kafes, 214 F.2d 887 (3d Cir.), cert. denied, 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954). The court held that in a prosecution for both attempting to evade income taxes and wrongful failure to file tax returns, the statute of limitations did not start to run until March 15 of the year following that for which the taxes were owed. Id. at 890. As in Meyerson, the question of whether subsequent acts of evasion would postpone the running of the statute of limitations was not an issue. Three other cases cited by defendants are simply not apposite and beg the question. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963,1 L.Ed.2d 931 (1957), involved the application of the statute of limitations to a tax fraud conspiracy. The Court held that “the crucial question in determining whether the statute" }, { "docid": "23680918", "title": "", "text": "by the statute of limitations, although since he received concurrent sentences, the success of this contention would have little practical effect. Appellant’s tax return for 1961 was filed on or about March 19, 1962, and the indictment was filed April 10, 1968, slightly more than six years later. 26 U.S.C. § 6531(2) (1970) sets a six-year statute of limitations for tax evasion prosecutions, and § 6531 provides: “For the purpose of determining the periods of limitation on criminal prosecutions, the rules of section 6513 shall be applicable.” 26 U.S.C. § 6513(a) (1970) provides that “any return filed before the last day prescribed for the filing thereof shall be considered as filed on such last day” (emphasis added). Thus Silverman’s 1961 tax return was deemed filed on April 15, 1962 (see 26 U.S.C. § 6072(a) (1970)) and an indictment filed on April 10, 1968 was timely. United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968), cited by appellant, holds only that where a taxpayer files a return after the due date, the limitations period begins when the return is actually filed. The rule is inapplicable here. Appellant contends that the trial court committed such “plain error” in charging the jury on the elements of the crime that we should reverse despite appellant’s failure to object at the time (see F.R.Crim.Proc. 52(b)). Our consideration of the charge reveals no such error. Appellant’s final contention is that the Government failed to make out a prima facie case. The record presents ample proof of appellant’s guilt. Affirmed. . Section 1864 of Title 28 provides that if the person whose name has been drawn to serve as a juror “is unable to fill out the form, another shall do it for him, and shall indicate that he has done so and the reason therefor.” However the form itself does not contain this information." }, { "docid": "21569288", "title": "", "text": "govern the applicable period of limitations in this case. Section 6513 provides in part that “the last day prescribed for filing the return or paying the tax shall be determined without regard to any extension of time granted the taxpayer.” 26 U.S.C. § 6513(a) (1982). However, in United States v. Habig, 390 U.S. 222, 225, 88 S.Ct. 926, 928, 19 L.Ed.2d 1055 (1968), the Supreme Court held that section 6513(a) is applicable only in situations where “a return is filed or a tax is paid before the statutory deadline.” The Court specifically noted that “[t]here is no reason to believe that § 6531, by reference to the ‘rules of section 6513’ expands the effect and operation of the latter beyond its own terms so as to make it applicable to situations other than those involving early filing or advance payment.” Id. In the present action, since Sams neither paid his taxes in advance nor filed an early return, section 6513 is not applicable. III. Having determined that section 6513 does not provide the applicable limitations period, we now consider what constitutes the appropriate “starting date” for the statute of limitations under section 6531. Both Sams and the Government assert that the statute of limitations for willful failure to pay taxes can be determined as a matter of law. Sams contends that, as a matter of law, the statute begins to run on the date the tax return is due to be filed. The Government, on the other hand, argues that the statute begins to run when the tax return is actually filed. We reject both of these arguments. In general, criminal statutes of limitations begin to run when the crime is complete, i.e., when every element of the crime has been committed. See Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). In the instant action, the trial court instructed the jury that in order to convict Sams, the Government had to show that Sams had a duty to pay taxes, that he failed to pay his taxes, and that his failure to" }, { "docid": "9665666", "title": "", "text": "want to see the doctor go to jail and that if the deposits into the Chase checking account were irreconcilable with the Matises’ reported income, “a lot” of additional tax would be assessed. Defendant asserts that Slivka was induced by them to believe that no criminal charges would be brought, and, in reliance o.n them, he disclosed additional information. Neither of the statements, however, justifies such reliance, for neither is incompatible with the subsequent criminal prosecution. Moreover, Slivka may be held to have known that a Revenue Agent’s decision not to refer a case for criminal investigation can be overridden by his supervisor. Statute of Limitations The applicable statute of limitations for the crimes charged in Counts One and Three is six years. 26 U.S.C. § 6531(2), (5). The Matises’ 1972 return was received by the IRS Service Center on June 15, 1973, which is thus its date of filing, see, e. g., United States v. Mahler, 181 F.Supp. 900, 903 (S.D.N.Y.1960), and the date from which the statute of limitations began to run, see, e. g., United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968). Since the indictment was filed in this case on June 15, 1979, it falls just within the statutory six years. The Court also finds that the defendant was “outside the United States” for at least twelve days between the filing of his 1972 return and the filing of the indictment. Consequently, the six-year statute was tolled for those twelve days. See 26 U.S.C. § 6531. Variance The instant indictment presents a rare case of a variance in proof before the commencement of trial. Count Two of the Indictment charges that the defendant attempted to evade paying federal income tax on his 1973 income by filing a false return “[o]n or about January 1, 1972, through on or about April 15, 1974.” The Government concedes, however, that the defendant did not file his 1973 return until on or about June 11, 1974, which is what Count Two, somewhat inconsistently, also charges. “In order for a variance between an indictment and" }, { "docid": "12435727", "title": "", "text": "their taxable income was $99,956.47,” thereby violating 26 U.S.C. § 7206(1). The indictment was returned on April 14, 1972; appellant and his wife had filed their return on or about April 1, 1966, although it was not due until April 15. Because the Internal Revenue Code provides a six-year statute of limitations for violations of section 7206(1), 26 U.S.C. § 6531(5), the prosecution would be untimely if the limitations period runs from April 1, but timely if the period runs from April 15. Appellant’s argument follows two tracks. First, he contends that no federal tax prosecution may be instituted more than six years after the act constituting the crime — in this case the filing of the subscribed, false return on or about April 1, 1966. Second, he argues that, even if the limitations period is properly measured from the due date in prosecutions for tax evasion, such a measurement should not apply to the instant case involving not tax evasion, but false declarations under penalties of perjury. Here, appellant stresses that a section 7206(1) charge may lie for the making or subscribing of false “statements” or “other documents”, under penalties of perjury, for which there are no due dates. ^ We must reject appellant’s first argument for three reasons: (1) the clear language of the Code; (2) the equally clear instruction of the Supreme Court in United States v. Habig, supra; and (3) the strong public policy upon which the Code’s limitations rules rest and which the Supreme Court sanctioned in Habig. “If the language be clear it is conclusive. There can be no construction if there is nothing to construe.” United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396, 18 L.Ed. 830 (1868). The language of sections 6531 and 6513(a) is clear. As the government successfully argued below: (1) the last sentence of section 6531 provides that “[f]or the purpose of determining the periods of limitation on criminal prosecutions, the rules of section 6513 shall be applicable”; and (2) section 6513(a) provides that “any return filed before the last day prescribed for the filing thereof shall be" }, { "docid": "6717871", "title": "", "text": "his exemptions for only a short period of time is not before this court. . This issue is distinct from the commencement of the limitations period when a return has been filed, either before or after the deadline. A quarter-century ago we noted: In a thoroughly documented opinion which traces the full legislative history of I.R.C. sections 6513 and 6531, the Supreme Court, in a unanimous opinion written by Mr. Justice Fortas, and in effect overruling Hull [v. United States, 356 F.2d 919 (5th Cir.1966) ], held that where the return was filed after the due date, the Statute of Limitations did not begin to run until the date of filing. (That is the date when the alleged crime was committed.) The Court said that when the return is filed prior to the due date, the statute begins to run on the due date. United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055, decided March 5, 1968 (mandate issued April 1, 1968). The decision in Habig is now binding upon us and therefore appellant's argument that this action was instituted too late has no merit. Bursten v. United States, 395 F.2d 976, 980 (5th Cir.1968) (emphasis original), cert. denied, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83 (1972). . There is no question of Williams’ willfulness or of his tax deficiency. He conceded as much to the jury; his counsel’s opening statement suggested that the jury should convict him of failure to file his returns. . We do not consider whether Williams' subsequent false statements to the revenue agent constituted affirmative acts; no mention of such statements was contained in the indictment." }, { "docid": "321349", "title": "", "text": "true and correct as to every material matter.” Section 7201 applies to a person who attempts to defeat or evade a tax “in any manner.” In holding that the statute was no bar, the district court cited United States v. Habig, 7 Cir., 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055. That decision holds that the § 6531 limitation period runs from the date of the actual filing and not from the original due date of the return. In the instant case the original due date had been extended and the original return filed within the extension period. IRS filed the amended return and recognized the increased depreciation claim. Norwitt v. United States, 9 Cir., 195 F.2d 127, 134, and Levy v. United States, 3 Cir., 271 F. 942, 943, hold that a person may be prosecuted for filing an amended return. We agree. An amended return is “any return, or other document” within the purview of § 7206(1) and may constitute an attempt to defeat or evade a tax “in any manner” within the proscription of § 7201. Accordingly, the statute is no bar. In the circumstances we have no reason to consider the government’s alternative argument that the concurrent sentence doctrine should be applied. Error is alleged in receipt in evidence of state court civil and criminal dockets of cases in which defendant was the attorney of record. The dockets showed the extent and nature of defendant’s law practice during the tax years. They supplied information leading the government to the many “specific items” witnesses. They disclosed the extent of the defendant’s criminal law practice and corroborated the testimony of the witness Richardson in that regard. They were relevant evidence as that term is defined in Rule 401, Federal Rules of Evidence. Defendant argues that the introduction of the dockets was an effort by the government to force him to testify. In his opening statement to the jury defense counsel said that the defendant would testify and outlined the scope of his expected testimony in some detail. Tr. 1501-1505. Later, defendant elected not to testify. Tr. 1690." }, { "docid": "321348", "title": "", "text": "is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 7 Cir., 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680. See also United States v. Downen, 10 Cir., 496 F.2d 314, 319. It is enough to say that the evidence supports and justifies the verdicts of the jury. Defendant contends that prosecution under Counts I and II is barred by the six-year period of limitations provided in 26 U.S.C. § 6531(2) and (5). Each of the questioned counts is based on an amended return filed with IRS on February 14, 1973. Gov’t. Ex. 5. The indictment was returned on January 4, 1979. The question is whether the limitation period runs from the date of the filing of the original return, September 15, 1972, or the filing of the amended return on February 14, 1973. Defendant argues that the original return governs because the amended return merely revised a depreciation schedule. Section 7206(1) applies to “any return, statement, or other document” not believed “to be true and correct as to every material matter.” Section 7201 applies to a person who attempts to defeat or evade a tax “in any manner.” In holding that the statute was no bar, the district court cited United States v. Habig, 7 Cir., 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055. That decision holds that the § 6531 limitation period runs from the date of the actual filing and not from the original due date of the return. In the instant case the original due date had been extended and the original return filed within the extension period. IRS filed the amended return and recognized the increased depreciation claim. Norwitt v. United States, 9 Cir., 195 F.2d 127, 134, and Levy v. United States, 3 Cir., 271 F. 942, 943, hold that a person may be prosecuted for filing an amended return. We agree. An amended return is “any return, or other document” within the purview of § 7206(1) and may constitute an attempt to defeat or evade a tax “in any manner” within" }, { "docid": "23353616", "title": "", "text": "a superseding indictment alleging that acts of evasion relating to tax years 1982 and 1983 occurred through November of 1985. Defendant argues that the statute of limitations began to run for each count on the date that each tax return was filed. The government argues, however, that the statute of limitations for each count of tax evasion began to run only when the last affirmative act of evasion occurred, thus bringing Counts 1 and 2 within the six-year statute of limitations period. In United States v. Hook, 781 F.2d 1166, 1173.n. 9 (6th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 269, 93 L.Ed.2d 246 (1986), we declined to decide whether the limitations period begins to run when income tax returns are filed or due or whether the limitations period begins to run at the last affirmative act of evasion in furtherance .of the crime. However, the two circuits which have addressed this specific issue have held that it is the date of the latest affirmative act of evasion that triggers the statute of limitations. See United States v. Winfield, 960 F.2d 970, 973 (11th Cir.1992) (per curiam); United States v. Ferris, 807 F.2d 269, 271 (1st Cir.1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987). We adopt the First and Eleventh Circuits’ approach to this issue because to hold, otherwise would only reward a defendant for successfully evading discovery of his tax fraud for a period of six years subsequent to the date the returns were filed. For example, in this case, defendant’s evasive acts in 1985 prevented the IRS from learning about defendant’s income tax fraud occurring in 1982 and 1983. Defendant relies on United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968), to support his argument that the statute of limitations should begin to run at the time the return is filed. In Habig, the Supreme Court held that the statute of limitations for an attempt to evade taxes by filing a false return under 26 U.S.C. § 7201 began to run oh the date that the returns" }, { "docid": "18562219", "title": "", "text": "(3d Cir.), cert. denied, 372 U.S. 966, 83 S.Ct. 1091, 10 L.Ed.2d 129 (1963). We do not find the cases relied on by defendant controlling. In United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968), the Court considered the application of the statute of limitations to an indictment charging an attempt to evade taxes by filing a false return and aiding in the preparation and presentation of a false return. The Court held that the offenses were committed when the returns were actually filed. It rejected defendant’s contention that the critical date was not when the returns were actually filed, but the earlier date when they were due to be filed. The Court held that it made no sense to assert that “Congress intended the limitations period to begin to run before appel-lees committed the acts upon which the crimes were based.” Id. at 224-25, 88 S.Ct. at 927-28. The rationale of Habig supports the government’s position here. The acts upon which the crime was based here are the false statements made in 1979 and 1983, continuing attempts to evade payment of the 1977 income tax. If all that defendant had done was to fail to file his 1977 income tax return, then the last act of evasion would have been April 15, 1978, the date the return and tax were due. The defendant, however, by deceitful statements continued his tax evasion through January of 1983. In United States v. Meyerson, 368 F.2d 393 (2d Cir.1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967), the court held that the fugitive from justice tolling provision of 26 U.S.C. § 6531 applied to a person who was outside the United States. The issue before us was not a factor in Myerson. The court did state that the statute of limitations for the willful evasion of tax commenced to run from the last date upon which the return was due. Id. at 395. But defendant had argued, as in Habig, that the effective date was the earlier on which he had filed his return." }, { "docid": "23680917", "title": "", "text": "1963). Since the indictment contained the correct figures, appellant had more than ample notice of what the Government intended to prove. Furthermore, the Government supplied defendant with detailed and correct schedules after having served the bill of particulars and months before the trial. In the circumstances the obvious error in the bill of particulars can hardly have hindered appellant in preparing his case. IV Appellant’s remaining contentions on this appeal are frivolous. His claim that summary schedules prepared by a government agent were given to the jury without a proper instruction as to their use is belied by the record. We long ago upheld the use of such summaries to aid the jury, even if they were not competent evidence in themselves. United States v. Kelley, 105 F.2d 912, 918 (2d Cir. 1939). In the case at bar, the trial judge twice gave clear instructions to this effect when the summaries were offered, and again when the jury asked for them during its deliberations. Appellant claims that the first count of the indictment was barred by the statute of limitations, although since he received concurrent sentences, the success of this contention would have little practical effect. Appellant’s tax return for 1961 was filed on or about March 19, 1962, and the indictment was filed April 10, 1968, slightly more than six years later. 26 U.S.C. § 6531(2) (1970) sets a six-year statute of limitations for tax evasion prosecutions, and § 6531 provides: “For the purpose of determining the periods of limitation on criminal prosecutions, the rules of section 6513 shall be applicable.” 26 U.S.C. § 6513(a) (1970) provides that “any return filed before the last day prescribed for the filing thereof shall be considered as filed on such last day” (emphasis added). Thus Silverman’s 1961 tax return was deemed filed on April 15, 1962 (see 26 U.S.C. § 6072(a) (1970)) and an indictment filed on April 10, 1968 was timely. United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968), cited by appellant, holds only that where a taxpayer files a return after the due date," }, { "docid": "6717870", "title": "", "text": "Copeland, 786 F.2d 768, 770 (7th Cir.1985) (false W-4 form was filed during first tax year charged and during the year after the second tax year charged: \"Where a taxpayer has willfully failed to file a tax return in violation of § 7203, a prior, concomitant or subsequent false statement may elevate the § 7203 misdemeanor to the level of a § 7201 felony.”) (citing United States v. Goodyear, 649 F.2d 226, 228 (4th Cir. 1981)); United States v. Crocker, 753 F.Supp. 1209 (D.Del.1991). . Form W-4 (Rev. 1-83) has a detachable portion with a withholding worksheet which the taxpayer is instructed to detach and keep for his records. The form which Williams signed, under penalty of perjury, still has the worksheet attached. The quotations above are from the information and instruction portion of that form, which was admitted as an exhibit at trial. . From the record it is evident that GARCO did not submit the W-4 to the IRS. Whether it failed to do so because of Williams’ representation that he was increasing his exemptions for only a short period of time is not before this court. . This issue is distinct from the commencement of the limitations period when a return has been filed, either before or after the deadline. A quarter-century ago we noted: In a thoroughly documented opinion which traces the full legislative history of I.R.C. sections 6513 and 6531, the Supreme Court, in a unanimous opinion written by Mr. Justice Fortas, and in effect overruling Hull [v. United States, 356 F.2d 919 (5th Cir.1966) ], held that where the return was filed after the due date, the Statute of Limitations did not begin to run until the date of filing. (That is the date when the alleged crime was committed.) The Court said that when the return is filed prior to the due date, the statute begins to run on the due date. United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055, decided March 5, 1968 (mandate issued April 1, 1968). The decision in Habig is now binding upon us" }, { "docid": "12435726", "title": "", "text": "OPINION OF THE COURT ALDISERT, Circuit Judge. United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968), held that the statute of limitations for criminal violations of the Internal Revenue Code runs from the actual date of filing, and not from the due date, when a return is filed after the due date pursuant to an extension. The question presented in this appeal is whether the limitations period runs from the filing date or the due date when a return is filed before the due date. The district court ruled that the period began to run from the due date, rejected a motion to dismiss the indictment as time-barred, permitted appellant to plead guilty while preserving the right to appeal the adverse decision on the motion to dismiss, and entered a judgment of conviction. We affirm. The grand jury indicted appellant and his wife for having subscribed and filed a return for the calendar year 1965 in which they stated they had had no taxable income when they “knew and believed, their taxable income was $99,956.47,” thereby violating 26 U.S.C. § 7206(1). The indictment was returned on April 14, 1972; appellant and his wife had filed their return on or about April 1, 1966, although it was not due until April 15. Because the Internal Revenue Code provides a six-year statute of limitations for violations of section 7206(1), 26 U.S.C. § 6531(5), the prosecution would be untimely if the limitations period runs from April 1, but timely if the period runs from April 15. Appellant’s argument follows two tracks. First, he contends that no federal tax prosecution may be instituted more than six years after the act constituting the crime — in this case the filing of the subscribed, false return on or about April 1, 1966. Second, he argues that, even if the limitations period is properly measured from the due date in prosecutions for tax evasion, such a measurement should not apply to the instant case involving not tax evasion, but false declarations under penalties of perjury. Here, appellant stresses that a section 7206(1)" }, { "docid": "18562218", "title": "", "text": "to 26 U.S.C. § 7201] which outlaws willful attempts to evade taxes 'in any manner’ is clearly broad enough to include false statements made to Treasury representatives for the purpose of concealing unreported income.” The case law substantiates the government’s position that it is the date of the latest act of evasion, not the due date of the taxes, that triggers the statute of limitations. In United States v. Trownsell, 367 F.2d 815 (7th Cir.1966), the court held that the statute of limitations started running in February of 1961 when defendant transferred a sum of money to a Swiss bank account notwithstanding that the taxes were due between 1946 and 1953. In United States v. Shorter, 608 F.Supp. 871 (D.D.C.1985), the court stated the prevailing rule: “An act constituting evasion which occurs during the limitations period brings the prosecution within the statute of limitations even if the taxes being evaded were due and payable prior thereto.” Id. at 874. See also United States v. Mousley, 194 F.Supp. 119 (E.D.Pa.1961), aff'd without opinion, 311 F.2d 795 (3d Cir.), cert. denied, 372 U.S. 966, 83 S.Ct. 1091, 10 L.Ed.2d 129 (1963). We do not find the cases relied on by defendant controlling. In United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968), the Court considered the application of the statute of limitations to an indictment charging an attempt to evade taxes by filing a false return and aiding in the preparation and presentation of a false return. The Court held that the offenses were committed when the returns were actually filed. It rejected defendant’s contention that the critical date was not when the returns were actually filed, but the earlier date when they were due to be filed. The Court held that it made no sense to assert that “Congress intended the limitations period to begin to run before appel-lees committed the acts upon which the crimes were based.” Id. at 224-25, 88 S.Ct. at 927-28. The rationale of Habig supports the government’s position here. The acts upon which the crime was based here are the false" }, { "docid": "23353617", "title": "", "text": "See United States v. Winfield, 960 F.2d 970, 973 (11th Cir.1992) (per curiam); United States v. Ferris, 807 F.2d 269, 271 (1st Cir.1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987). We adopt the First and Eleventh Circuits’ approach to this issue because to hold, otherwise would only reward a defendant for successfully evading discovery of his tax fraud for a period of six years subsequent to the date the returns were filed. For example, in this case, defendant’s evasive acts in 1985 prevented the IRS from learning about defendant’s income tax fraud occurring in 1982 and 1983. Defendant relies on United States v. Habig, 390 U.S. 222, 88 S.Ct. 926, 19 L.Ed.2d 1055 (1968), to support his argument that the statute of limitations should begin to run at the time the return is filed. In Habig, the Supreme Court held that the statute of limitations for an attempt to evade taxes by filing a false return under 26 U.S.C. § 7201 began to run oh the date that the returns were actually filed, not the date that they were due to be filed. The Court determined that to hold otherwise would be to accept the argument that “Congress intended the limitations period to begin to run before [defendants] committed the acts upon which the crimes were based.” Id. at 225, 88 S.Ct. at 928. Habig actually supports the position that the statute of limitations for income tax evasion alleged in Counts 1 and 2 in this case did not begin to run until the last affirmative evasive acts occurring sometime in Novem ber of 1985. This conclusion is so because it is these evasive acts, occurring within six years of the. superseding indictment, which form the basis of the crimes alleged in Counts 1 and 2 of the superseding indictment. Finally, this result seems reasonable when one considers the fact that had it not been for defendant’s evasive acts in 1985, the IRS would very likely have discovered defendant’s income tax fraud occurring in 1982 and 1983. To hold that the statute of limitations for" } ]

[ { "docid": "15993762", "title": "", "text": "generally not retroactive and “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. 109 S.Ct. at 1070, (emphasis in original). Petitioner strenuously argues that Gomez involves no “new” rule, but merely a clarification of an existing rule that has been misapplied by federal courts across the country. This Court disagrees. Prior to Gomez, the Supreme Court had been silent on the issue of a federal magistrate’s jurisdiction to preside over jury selection. Its holding that magistrates lack such jurisdiction can only be characterized as new. United States v. Rubio, 722 F.Supp. 77, 84-85 (D.Del.1989). See also France, 886 F.2d at 227; Lopez-Pena, 890 F.2d at 493 n. 3; United States v. Baron, 721 F.Supp. 259, 261 (D.Hawaii 1989). It follows, therefore, that whether Gomez applies retroactively to final judgments turns on the Supreme Court’s newly announced standard in Teague. Id. In Teague the Supreme Court concluded with respect to cases on collateral review — such as this federal habeas corpus petition — that “unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague, 109 S.Ct. at 1075 (1989). See also Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). To the general rule of non-retroactivity the Teague court articulated two exceptions. One permits a new rule to be applied retroactively “if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ ” Id. 109 S.Ct. at 1075 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (separate opinion of Harlan, J.)). Clearly, as all parties here concede, this first exception does not apply because the Gomez decision does not implicate any primary conduct that was once illegal but is now legal. The second exception, however, is more troublesome. According to a plurality of the Teague Court, a new rule should be" } ]

[ { "docid": "4496416", "title": "", "text": "2255 proceedings where, as here, the petitioner urges retroactive application of new, already-announced, non-constitutional rules of criminal procedure such as Gomez. This result is logically dictated, because if Teague’s retroactivity standard and the two exceptions thereto are applicable to alleged constitutional violations, it follows a fortiori that Teague must be applicable to violation of a statute, which is of lesser importance. Policy, too, dictates Teague’s application since concerns of finality are just as present here in this collateral attack on a federal conviction as they were in Teague. “Without finality, the criminal law is deprived of much of its deterrent effect.” Teague, 109 S.Ct. at 1074. Here Hrubec has already been afforded a suppression hearing, a trial by jury, a direct appeal to the Court of Appeals, a collateral attack on his conviction under § 2255 passed upon by a magistrate and a district judge, and an appeal from the denial of the § 2255 petition. A convicted criminal must eventually come to the realization that he has been given a fair trial, has been found guilty by a jury of his peers, and has had a sentence imposed upon him which he indeed must serve. As Justice Harlan said: “No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation.” Williams v. United States, 401 U.S. 675, 691, 91 S.Ct. 1171, 1179, 28 L.Ed.2d 388 (1971) (Harlan, J., concurring). The goal of finality would be thwarted if every new rule of criminal procedure could potentially lead to the collateral overturning of an otherwise valid conviction. In sum, then, Teague requires that its standards of retroactivity be applied to Gomez in this proceeding. 2. Teague Applied To Gomez Teague instructs this Court first to decide whether Gomez announced- a “new” rule. See Saffle, 110 S.Ct. at 1259-60. In general ... a case announces a new rule when it breaks new ground or imposes a new obligation on" }, { "docid": "15993761", "title": "", "text": "Court unequivocally concluded that such a defendant is not. United States v. Vanwort, 887 F.2d 375, 382-383 (2d Cir.1989); United States v. Mang Sun Wong, 884 F.2d 1537, 1545 n. 2 (2d Cir.1989); see also United States v. Alvarado, 891 F.2d 439 (2d Cir.1989). Today, we confront another issue in the Gomez aftershock, i.e., retroactivity. While no circuit court has yet squarely decided the retroactive effect of Gomez on final judgments, we are not totally without guidance. See United States v. Lopez-Pena, 890 F.2d 490, 493 n. 3 (1st Cir.1989) (court, ruling on the retroactive effect of Gomez on cases still pending on direct appeal, mentions in dicta that Teague v. Lane, — U.S. -, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334, reh’g denied, — U.S. -, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989), provides the appropriate standard for determining retroactivity of “new rulings” on collateral review of final convictions); see also United States v. France, 886 F.2d 223, 227 n. 2 (9th Cir.1989). In Teague, the Supreme Court teaches that so-called “new rules” are generally not retroactive and “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. 109 S.Ct. at 1070, (emphasis in original). Petitioner strenuously argues that Gomez involves no “new” rule, but merely a clarification of an existing rule that has been misapplied by federal courts across the country. This Court disagrees. Prior to Gomez, the Supreme Court had been silent on the issue of a federal magistrate’s jurisdiction to preside over jury selection. Its holding that magistrates lack such jurisdiction can only be characterized as new. United States v. Rubio, 722 F.Supp. 77, 84-85 (D.Del.1989). See also France, 886 F.2d at 227; Lopez-Pena, 890 F.2d at 493 n. 3; United States v. Baron, 721 F.Supp. 259, 261 (D.Hawaii 1989). It follows, therefore, that whether Gomez applies retroactively to final judgments turns on the Supreme Court’s newly announced standard in Teague. Id. In Teague the Supreme Court concluded with respect to cases on collateral review — such as this federal habeas corpus" }, { "docid": "10525631", "title": "", "text": "Teag-ue, address the retroactive application of new laws on collateral review of state convictions pursuant to 28 U.S.C. § 2254. Petitioner contends that the case before the Court is distinguishable from those cases. Elortegui is a federal prisoner who moves to vacate his conviction pursuant to 28 U.S.C. § 2255. Petitioner’s contention is not entirely without merit. In his dissent, Justice Brennan explicitly notes that the plurality fails to address whether the Teague rule applies to federal prisoners. Teague, 109 S.Ct. at 1084 n. 1 (Brennan, J., dissenting). Moreover, the balance between an individual’s interest in a trial free from constitutional error and the interests of comity and finality is different in federal cases than it is in state cases. Without the interest in comity, the balance shifts favorably to the individual, and it seems probable that the individual’s interest in a constitutional trial would outweigh the federal government’s interest in finality. But see Hrubec v. United States, 734 F.Supp. 60 (E.D.N.Y.1990) (Teague analysis applicable to § 2255 proceedings because of government’s interest in finality). Nevertheless, the Court cannot hold today that Teague does not apply to federal prisoners seeking collateral review of their convictions. Although all of the decisions except Hrubec, supra, applying Teague to collateral attacks on federal convictions have done so silently, see United States v. Ayala, 894 F.2d 425 (D.C.Cir.1990); Gilberti v. United States, 731 F.Supp. 576 (E.D.N.Y.1990); United States v. Makaweo, 730 F.Supp. 1016 (D. Hawaii 1990); United States v. Rubio, 722 F.Supp. 77 (D.Del.1989), at least one obvious reason exists for applying Teague to petitions brought pursuant to § 2255. Exempting federal prisoners from the Teague doctrine of retroac-tivity would result in the courts treating federal prisoners more favorably than state prisoners. The absence of comity concerns cannot alone justify such unequal treatment of state and federal prisoners on collateral review, and no other reason has been suggested for such disparate treatment. To hold that Teague does not apply to federal prisoners would create the very type of inequity that the Teague decision ostensibly was designed to remedy. 109 S.Ct. at 1072. Therefore, we" }, { "docid": "9420790", "title": "", "text": "rule of retroactivity to the instant case. See Hrubec v. United States, 734 F.Supp. 60, 64-65 (E.D.N.Y.1990); United States v. Rubio, 722 F.Supp. 77, 85 (D.Del.1989), aff'd without op., 908 F.2d 965 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990). The rule pronounced in Gómez does not fall within either of the two Teague exceptions to the general principle prohibiting retroactive application of a new constitutional rule of criminal procedure in collateral review of a conviction. Gómez concluded that magistrates were not authorized by statute to preside over the voir dire of juries without defendants’ consent. France and Martínez-Torres further held that failure to object to the magistrate empanelment does not constitute waiver of the issue. These holdings do not affect the government’s power to proscribe the pri vate conduct for which Mr. Valladares was convicted — trafficking in drugs, falsely pretending to be an officer of the United States Army, and falsely representing his name in a United States Customs Air Baggage Declaration form. Grassi v. United States, 742 F.Supp. 1141, 1142 (S.D.Fla.1990); Hrubec, 734 F.Supp. at 66. Further, if the use of the peremptory challenges to strike jurors of the same race as defendant did not affect the accuracy of the conviction in Teague, it logically follows that empanelment of a jury by a neutral, detached, competent federal magistrate would not implicate the “fundamental fairness” and accuracy of conviction contemplated by the Court in Teague and its progeny. Rubio, 722 F.Supp. at 85. Therefore, we conclude that Gómez should not be retroactively applied in this § 2255 proceeding. Wherefore, in view of the foregoing, petitioner’s request for relief under 28 U.S.C. § 2255 is DENIED, and the petition is DISMISSED. IT IS SO ORDERED. . The court noted that a case is \"final” if the conviction has been rendered, availability of appeal has been exhausted, and the time for petition for certiorari has elapsed or petition for certiorari has been denied. Id. at 227 (quoting Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987)). . In United" }, { "docid": "4104389", "title": "", "text": "whether or not there were any problems with jury selection and all counsel responded in the negative. In Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Court held that the unconsented to selection of a jury in a criminal case by a magistrate is not authorized by the Magistrates Act. This petition is premised on the retroactive application of Gomez to cases on collateral review. WAIVER The first issue is whether petitioner, not having objected to the procedure or taken a direct appeal on the issue, has waived his right to claim the benefit of Gomez. In United States v. France, 886 F.2d 223 (9th Cir.1989), this Circuit held that in light of the prevailing settled state of circuit law, the failure to object to magistrate-conducted jury selection did not waive defendant’s right to object on direct appeal. Id. at 228. The Circuit’s reasoning behind application of the non-waiver rule on direct appeal is just as applicable to collateral review. Therefore, petitioner is not precluded by “waiver” from raising his Gomez error claim in this proceeding. RETROACTIVITY Gomez is completely silent as to its retroactive application. France expressly avoids decision of the issue of whether Gomez “should be afforded ‘complete’ retroactive effect and applied to convictions pending on collateral review.” Id. at 227 n. 2. France, id., however, does refer us to Teague v. Lane, — U.S. -, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), on this issue. In Teague, Justice O’Connor, apparently speaking for a majority, announced the rule that, “Unless they fall within an exception to the general rule, new Constitutional rules of criminal procedure will not be applicable to those eases which have become final before the new rules are announced.” Id. at 1075 (footnote omitted). Petitioner’s conviction became final in 1986. Thus, Gomez would not be applicable to this case, unless it falls within an exception to the Teague rule. The first exception, according constitutional protection to primary conduct, does not apply and petitioner so concedes. The second exception to non-retroactive application is creation of a new “bedrock procedural" }, { "docid": "11221174", "title": "", "text": "the First Circuit has intimated that Teag-ue applies with equal force to cases involving new rules of non-constitutional law. In United States v. López-Peña, 912 F.2d 1542 (1st Cir.1989), cert. denied, 501 U.S. 1249, 111 S.Ct. 2886, 115 L.Ed.2d 1052 (1991), the Court of Appeals states that, [flor cases arising on collateral review after convictions have become final, a different set of considerations is implicated. In such cases, new rulings — even those of a constitutional dimension — are not applicable, unless the neoteric rules affect primary, private individual conduct, or are so central to an accurate determination of innocence or guilt as to constitute a “bedrock procedural element.” Id. at 1545 n. 3 (emphasis added). Then, in United States v. Valladares-Tesis, 762 F.Supp. 465 (D.P.R.1991), the district court, following Hrubec, concluded that Teague does, in fact, apply to new rules of statutory, non-constitutional law.' More recently, however, Judge Young, District of Massachusetts, has suggested that the issue remains unresolved, while noting, however, that most courts that have considered the retroactivity of the non-constitutional rule of criminal procedure announced in Gómez v. United States, 490 U.S. 858, 872, 109 S.Ct. 2237, 2246, 104 L.Ed.2d 923 (1989), have applied Teague. Payne, 894 F.Supp. at 542 n. 15. Following the majority of courts that have addressed this issue, we now conclude that Teague applies to new rules of nonconstitu-tional law. We follow the majority, not because we perceive these other courts to have adopted a unified approach to the matter, but because we perceive these courts to have failed, as have we, to identify a good reason to distinguish between constitutional and nonconstitutional rules of law when determining retroactivity. 3. Applicability of Teague to New Substantive Rules of Law Though we deem Teague to apply both on collateral review of federal court convictions and to new rules of non-constitutional law, we agree with Tayman, that Teague does not apply to new substantive rules of law. Tayman, 885 F.Supp. at 839-41. As we have already noted, Justice Harlan wrote Mackey with only rules of procedural due process in mind, differentiating substantive rules of" }, { "docid": "9420789", "title": "", "text": "that the new “watershed” rule of criminal procedure must implicate the fundamental fairness and accuracy of the petitioner’s conviction in order to be applied retroactively in collateral proceedings. Saffle v. Parks, 494 U.S. 484, -, 110 S.Ct. 1257, 1263-64, 108 L.Ed.2d 415, 428-29 (1990). See also Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) (majority of Court endorsing Teague approach). We note that Teague involved a habeas corpus proceeding under 28 U.S.C. § 2254, and a new constitutional rule of criminal procedure, whereas the instant case, a petition filed under 28 U.S.C. § 2255, involves the Gomez decision, a new rule of criminal procedure based on construction of a statute, rather than constitutional interpretation. However, the same considerations discussed in Teague, such as the importance of the finality of a conviction, and the equality of the treatment for those similarly situated, are present in this case. Moreover, the Teague rule, if applied to alleged constitutional violations, must, a fortiori apply to violations of a statute; therefore, we apply the Teague rule of retroactivity to the instant case. See Hrubec v. United States, 734 F.Supp. 60, 64-65 (E.D.N.Y.1990); United States v. Rubio, 722 F.Supp. 77, 85 (D.Del.1989), aff'd without op., 908 F.2d 965 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990). The rule pronounced in Gómez does not fall within either of the two Teague exceptions to the general principle prohibiting retroactive application of a new constitutional rule of criminal procedure in collateral review of a conviction. Gómez concluded that magistrates were not authorized by statute to preside over the voir dire of juries without defendants’ consent. France and Martínez-Torres further held that failure to object to the magistrate empanelment does not constitute waiver of the issue. These holdings do not affect the government’s power to proscribe the pri vate conduct for which Mr. Valladares was convicted — trafficking in drugs, falsely pretending to be an officer of the United States Army, and falsely representing his name in a United States Customs Air Baggage Declaration form. Grassi v. United States," }, { "docid": "4496418", "title": "", "text": "the States or the Federal Government..... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. Teague, 109 S.Ct. at 1070 (emphasis in original). Given this standard, Gomez clearly announced a “new” rule. The Supreme Court had not spoken on the issue, there was a split in the circuit courts, and the trend prior to Gomez was toward expanding the authority of magistrates. United States v. Rubio, 722 F.Supp. at 84-85. Thus, Teague instructs that to be retroactively applicable here Gomez must fall into one of two exceptions. See Penry, 109 S.Ct. at 2952. The question of retroactivity therefore depends on two narrow exceptions which may be difficult in application. The first Teague exception to non-retroactivity in collateral proceedings — i.e., “that a new rule should be applied retroactively if it places certain kinds of primary, private conduct beyond the power of the criminal law-making authority to proscribe,” 109 S.Ct. at 1075 (internal quotation and citation omitted) — is not applicable here. Gomez said magistrates are not statutorily empowered to preside over the voir dire of juries without defendants’ consent; it did not affect the power of the government to proscribe the conduct for which Hrubec was convicted, i.e., drug trafficking. Nor is Teague’s second exception applicable here. Where a neutral, detached, experienced magistrate presides over the jury voir dire, it certainly is not more likely that an innocent man will be found guilty. Cf. Id. at 1077. See Rubio, 722 F.Supp. at 85. When a magistrate presides over jury selection, fundamental fairness, “ordered liberty,” and “accuracy of conviction” are adequately protected by the presence of the adversaries who are free to employ both their preemptory and forcause challenges and objections during the voir dire. Neither can it be said that having a judge rather than a magistrate preside over a jury voir dire is a “bedrock procedural element,” id. at 1077. Indeed, “[b]y the time of the Court’s decision in Gomez, no less than 51 districts had local rules expressly providing magistrates" }, { "docid": "4658764", "title": "", "text": "Gomez, the Supreme Court held that the Federal Magistrate’s Act does not authorize a Magistrate to preside over jury selection in a felony trial over a defendant’s objections. Because this Court finds that the Gomez rule does not apply retroactively in this collateral proceeding and because the Court concludes that the petitioner’s claim is proeedurally barred under United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), this Court RATIFIES, AFFIRMS and APPROVES the recommendation of the Magistrate that the Petition for Writ of Habeas Corpus be DENIED. Therefore, it is hereby ORDERED AND ADJUDGED that the Petition for Writ of Habeas Corpus be and the same is DENIED (dismissed). DISCUSSION: Generally, new rules will not be applied retroactively on collateral review. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). This rule comports with the animating purpose of habeas corpus proceedings which is to ensure the application of the law prevailing at the time a conviction became final. Id. 109 S.Ct. at 1073. The Supreme Court recognizes two exceptions to this general rule. First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe. Id. Second, a new rule should apply retroactively if it implicates the fundamental fairness of a trial and failure to employ the rule seriously diminishes the likelihood of an accurate conviction. Id. (plurality opinion at 1077). This Court finds that the Gomez rule falls under neither of the two above-enumerated exceptions. To begin with, the holding does not bear on any primary, private individual conduct. See U.S. v. Rubio, 722 F.Supp. 77 (D.Del.1989). Case law also suggests that the Gomez rule fails to implicate fundamental fairness or that failure to employ the rule would seriously dimmish the likelihood of an accurate conviction. In Teague v. Lane, supra, the Supreme court considered the retroactive application of a rule affecting the proper empanelment of a jury in a felony trial. In particular, the Court considered the retroactive application of a rule" }, { "docid": "17468992", "title": "", "text": "S.Ct. at 1260; see also Butler, 110 S.Ct. at 1216; Penry, 109 S.Ct. at 2947. Under this principle, Gomez established a “new rule”. Prior to Gomez, both congress and the courts had followed a trend toward expanding the authority of magistrates, see Gomez, 109 S.Ct. at 2242-43; at least “51 districts had local rules expressly providing magistrates with authority to conduct voir dire.” United States v. Rubio, 722 F.Supp. 77, 86 (D.Del.1989), aff'd, 908 F.2d 965 (3d Cir.1990). The Supreme Court remained silent on the issue until it granted certiorari to Gomez after this circuit had held that the Federal Magistrates Act provided authority for jury selection by magistrates. United States v. Garcia, 848 F.2d 1324, 1332 (2d Cir.1988), rev’d sub nom. Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). After full briefing and argument, the Gomez Court reversed the second circuit and in effect required a change of jury selection procedures in 51 of this country’s 91 districts. Thus, the Court’s holding that the act did not authorize magistrates to preside over jury selection in a felony trial where the defendant objected was not only not dictated by precedent, but was contrary to existing practice and precedent both in this circuit and in many courts throughout the federal system. We conclude, therefore, that the rule announced in Gomez was, indeed, a “new rule” of criminal procedure. C. No Exception. Even though he relies on a new rule, Gilberti still could apply this rule retroactively on collateral review if his case fell within one of the recognized exceptions. Teague, 109 S.Ct. at 1075. The exception for rules that place certain kinds of private conduct beyond the proscription of criminal law-making authority, id. at 1075, does not apply here, and Gilberti does not attempt to rely on it. Gilberti does invoke the exception for new procedures which seek to correct a condition that undermines the fundamental fairness of a conviction and “seriously diminish[es] the likelihood of obtaining an accurate conviction.” Teague, 109 S.Ct. at 1077; see Saffle, 110 S.Ct. at 1263. However, he is unable" }, { "docid": "15993764", "title": "", "text": "applied retroactively to an otherwise final judgment when such a rule involves “those new procedures without which the likelihood of an accurate conviction is seriously diminished.” Id. 109 S.Ct. at 1076-1077. District courts have split on this question vis-a-vis jury selection by a magistrate. The Hawaii district court in Baron, supra, concluded that “because the rule announced in Gomez implicates the fundamental fairness of Baron’s trial and the accuracy of her conviction, this Court finds that Gomez must be applied retroactively on collateral review.” Id. at 262. In Rubio, supra, however, the Delaware district court, applying the same Teague exception, adamantly rejected any retroactive application of Gomez to final judgments on collateral attack. Rubio, 722 F.Supp. at 84. That court reasoned: Rubio’s claim cannot be meaningfully distinguished from that present in Teag-ue. Both involve the same issue: challenges to the propriety of the jury em-panelment. Whereas the petitioner in Teague raised a sixth amendment challenge to the propriety of the jury empan-elment, Rubio’s [Gomez] claim is based upon the Court’s interpretation of a statute. Empanelment before a federal magistrate is no more likely to impact upon the accuracy of conviction than the use of peremptory challenges to strike jurors. Surely, if the constitutional claim in Teague did not implicate “fundamental unfairness” as defined by the plurality, the statutory [Gomez] claim before me also fails to come within the second exception. Id. at 85. I find the Rubio reasoning persuasive and conclude, accordingly, that Gomez should not be given retroactive effect to judgments which became final prior to the Supreme Court’s decision. In Teague the Supreme Court found that, because the absence of a fair cross section of jurors did not undermine fundamental fairness or seriously dimmish the likelihood of an accurate conviction, a new rule requiring petit juries to be composed of a fair cross section of the community did not involve a “bedrock procedural element” warranting retroactive application. Id. 109 S.Ct. at 1077. The same analysis should apply to jury selection by a federal magistrate. It may also be worth noting that the Baron decision to grant full retroactive" }, { "docid": "4496419", "title": "", "text": "is not applicable here. Gomez said magistrates are not statutorily empowered to preside over the voir dire of juries without defendants’ consent; it did not affect the power of the government to proscribe the conduct for which Hrubec was convicted, i.e., drug trafficking. Nor is Teague’s second exception applicable here. Where a neutral, detached, experienced magistrate presides over the jury voir dire, it certainly is not more likely that an innocent man will be found guilty. Cf. Id. at 1077. See Rubio, 722 F.Supp. at 85. When a magistrate presides over jury selection, fundamental fairness, “ordered liberty,” and “accuracy of conviction” are adequately protected by the presence of the adversaries who are free to employ both their preemptory and forcause challenges and objections during the voir dire. Neither can it be said that having a judge rather than a magistrate preside over a jury voir dire is a “bedrock procedural element,” id. at 1077. Indeed, “[b]y the time of the Court’s decision in Gomez, no less than 51 districts had local rules expressly providing magistrates with authority to conduct voir dire.” Rubio, 722 F.Supp. at 86. In light of the foregoing, the Court holds that Gomez should not be applied retroactively in this § 2255 proceeding and that the portion of Hrubec’s petition predicated upon Gomez must therefore be denied. See also Gilberti v. United States, 731 F.Supp. 576 (E.D.N.Y.1990) (McLaughlin, J.) (applying Teague to Gomez; holding Gomez non-retroactive to collateral proceedings). 3. Explicit Consent In the alternative, however, if the Court found Gomez to be applicable here, it would offer Hrubec no solace. At the very beginning of the jury voir dire the following colloquy took place between Magistrate Chrein and Hrubec as shown by the Transcript of Jury Selection Before the Honorable A. Simon Chrein, United States Magistrate, dated February 28, 1985, at p. 2: THE COURT: Mr. Hrubec, I am a United States Magistrate, I am not empowered by law to try this case. You have a right to have this case tried by a United States District Court Judge, a Judge of higher rank than myself." }, { "docid": "16918796", "title": "", "text": "retroactive application of new constitutional rules of criminal procedure in Teague v. Lane, — U.S. -, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). As a preliminary matter, the Court notes that the Gomez decision was one of statutory construction, rather than constitutional law. See Gomez, 109 S.Ct. at 2246 n. 25. While the retroactivity test set forth in Teague evolved in the context of new constitutional rules, the Court finds the analysis of Teag-ue applicable to Gomez. See France, at 226 (cases dealing with retroactivity of new constitutional rules applied to Gomez); id. at 227 n. 2 (citing Teague in reference to question of whether Gomez should be applied retroactively on collateral review). New rules of criminal procedure will not apply retroactively to cases on collateral review, unless they fall within an exception to the general rule. Teague, 109 S.Ct. at 1075. One exception is for “bedrock procedural elements,” the absence of which would undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of an accurate conviction. Id. at 1076-77. The rule announced in Gomez falls under this exception, whether viewed in terms of fundamental fairness or accuracy of conviction. The Supreme Court in Gomez held that magistrates lack the power to conduct voir dire in a felony trial, thus, pointing out a fundamental, jurisdictional defect. In reaching its decision, the Court noted that jury selection represented a “critical stage” of the proceeding, with voir dire as “the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice.” Gomez, 109 S.Ct. at 2246. When a magistrate conducts voir dire, the defendant is deprived of a “basic” right “to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside.” Id. at 2248. By its nature, any such jurisdictional error involves a “bedrock procedural element,” undermining the fundamental fairness of a felony trial. Cf. United States v. Johnson, 457 U.S. 537, 550, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202 (1982) (“the Court has recognized full re-troactivity as" }, { "docid": "4496410", "title": "", "text": "35 (Case No. 84-CR-566), claiming that the ten-year special parole term imposed by the Court was illegal and should be vacated. The Court addresses Hrubec’s claims seriatim. I. THE § 2255 PETITION A. Jury Selected By Magistrate There is no doubt that, in the afternoon of February 28, 1985, Chief Magistrate Chrein of this District presided over the jury voir dire of Hrubrec’s trial. And, as Hrubec points out, in Gomez v. United States, - U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Supreme Court unanimously reversed a conviction obtained in this District because a magistrate, rather than a federal district judge, had presided over jury selection. In Gomez the Court held that a magistrate’s presiding over the selection of a jury in a felony trial “without the defendant’s consent” was unauthorized by the Federal Magistrates Act, and thus violated the defendant’s right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside. 109 S.Ct. at 2239, 2248 (emphasis added). Accordingly, Hrubec claims that his conviction should therefore be vacated. To apply this principal, the Court must first decide the threshold question of Gomez’s retroactivity. 1. Retroactivity Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), decided the same term as Gomez, related to the application to petit juries of the Sixth Amendment requirement of a representative cross-section of the community that had theretofore been applied only to juror pools from which petit juries are drawn. Before reaching that issue, however, a plurality of the Supreme Court set out standards regarding retroactivity of new constitutional rules of criminal procedure when a court is urged to announce and apply those rules for the first time in collateral federal habeas corpus attacks on state criminal convictions under 28 U.S.C. § 2254. The Teague plurality, adopting guidelines that had previously been suggested by Justice Harlan, stated that the question of retroactivity in such cases must be decided at the outset due to concerns of comity, finality, equality of treatment for those similarly situated, and avoidance of constitutional adjudication. The plurality" }, { "docid": "4496415", "title": "", "text": "question whether the rule it announces today extends to claims brought by federal as well as state prisoners”). Thus, Teague’s concerns of comity are not present here in these proceedings under 28 U.S.C. § 2255, as no question arises as to the deference due to the concomitantly sovereign state courts. Of course, Teague’s concerns of finality, equality of treatment for those similarly situated, and avoidance of constitutional adjudication are also often present in a § 2255 proceeding. (2) The standards set down by Teague dealt with the retroactivity of newly extended constitutional rules of criminal procedure. Furthermore, these standards dealt not only with new constitutional rules of criminal procedure, but such rules when habeas courts are asked to apply them for the first time ever. Here, the Supreme Court has already announced the Gomez “rule,” and that rule is based not on constitutional construction but on statutory interpretation of the Federal Magistrates Act. Although Teague and this case differ, the Court holds that the rules of retroactivity set forth in Teague are applicable to § 2255 proceedings where, as here, the petitioner urges retroactive application of new, already-announced, non-constitutional rules of criminal procedure such as Gomez. This result is logically dictated, because if Teague’s retroactivity standard and the two exceptions thereto are applicable to alleged constitutional violations, it follows a fortiori that Teague must be applicable to violation of a statute, which is of lesser importance. Policy, too, dictates Teague’s application since concerns of finality are just as present here in this collateral attack on a federal conviction as they were in Teague. “Without finality, the criminal law is deprived of much of its deterrent effect.” Teague, 109 S.Ct. at 1074. Here Hrubec has already been afforded a suppression hearing, a trial by jury, a direct appeal to the Court of Appeals, a collateral attack on his conviction under § 2255 passed upon by a magistrate and a district judge, and an appeal from the denial of the § 2255 petition. A convicted criminal must eventually come to the realization that he has been given a fair trial, has been" }, { "docid": "4496420", "title": "", "text": "with authority to conduct voir dire.” Rubio, 722 F.Supp. at 86. In light of the foregoing, the Court holds that Gomez should not be applied retroactively in this § 2255 proceeding and that the portion of Hrubec’s petition predicated upon Gomez must therefore be denied. See also Gilberti v. United States, 731 F.Supp. 576 (E.D.N.Y.1990) (McLaughlin, J.) (applying Teague to Gomez; holding Gomez non-retroactive to collateral proceedings). 3. Explicit Consent In the alternative, however, if the Court found Gomez to be applicable here, it would offer Hrubec no solace. At the very beginning of the jury voir dire the following colloquy took place between Magistrate Chrein and Hrubec as shown by the Transcript of Jury Selection Before the Honorable A. Simon Chrein, United States Magistrate, dated February 28, 1985, at p. 2: THE COURT: Mr. Hrubec, I am a United States Magistrate, I am not empowered by law to try this case. You have a right to have this case tried by a United States District Court Judge, a Judge of higher rank than myself. Do you have any objection if I participate in this case to the extent of selecting a jury? THE DEFENDANT: Can you repeat it? THE COURT: You have the right to have this case tried by a District Judge, a Judge of higher rank than myself. You may or may not have the right to object to my selecting a jury, just picking the jury. Is it all right with you if I pick the jury? THE DEFENDANT: Yes. THE COURT: You’ve talked about this with [your attorney] Mr. Finkelstein? THE DEFENDANT: Yes, I did. Clearly Hrubec knowingly and voluntarily waived what Gomez characterized as his “basic” right “to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside.” See 109 S.Ct. at 2248. Furthermore, the Second Circuit has interpreted Gomez not to apply where the defendant consents or fails to object to a magistrate-conducted jury voir dire. See United States v. Vanwort, 887 F.2d 375, 382-83 (2d Cir.1989); United States v. Mang Sun Wong, 884 F.2d 1537 (2d" }, { "docid": "11221172", "title": "", "text": "new rules derived from the Constitution. See Toyman, 885 F.Supp. at 838. In fact, we should expect that, given the relative importance of new constitutionally-dictated rules of procedure, our rules of retroactivity would, if anything, require that the courts apply new rules of constitutional law with more liberal retroactivity than they would of non-constitutional law. See Hrubec v. United States, 734 F.Supp. 60, 65 (E.D.N.Y.1990). Of course, a policy of limiting the applicability of Teague to cases involving new rules of constitutional law would produce the opposite result. Not surprisingly, then, most of the lower courts that have addressed the issue have found new statutory non-constitutional law retroactive on collateral review. See James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 25.1 n. 18, at 719-20 (2nd ed. 1994). In McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme Court limited the scope of the federal mail fraud statute by excluding from its reach infringements against intangible property. This new statutory, non-constitutional rule provoked petitions for collateral relief from those whom the courts had convicted for infringing upon intangible property rights. Most courts agreed that the holding of McNally should apply retroactively. See, e.g., United States v. Shelton, 848 F.2d 1485, 1488-90 (10th Cir.1988) ten hand); Ingber v. Enzor, 841 F.2d 450, 453-54 (2nd Cir.1988); United States v. Mandel, 862 F.2d 1067, 1074-75 (4th Cir.1988), cert. denied, 491 U.S. 906,109 S.Ct. 3190, 105 L.Ed.2d 699 (1989); Magnuson v. United States, 861 F.2d 166, 167 (7th Cir.1988); Lomelo v. United States, 891 F.2d 1512, 1515 n. 8 (11th Cir.1990). Unfortunately, these courts have reached their common conclusion by different routes. See James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure, § 25.1, at 720 (2nd ed. 1994). Some courts deemed the case to have fallen within the first exception to Teague, while others concluded that Teag-ue.does not apply to new rules of substantive criminal law. Id. The matter has come to only slightly greater resolution within this Circuit. Though only in dicta, the Court of Appeals for" }, { "docid": "17468991", "title": "", "text": "the considerations of federalism and comity that must be weighed on a state habeas corpus application, the primary reason for restricting collateral review — the goal of finality — is common to both federal and state applications. Further, the reason the Supreme Court expressly clarified the principles governing retroactivity on collateral review, see e.g., Linkletter v. Walker, 381 U.S. 618, 627-30, 85 S.Ct. 1731, 1736-38, 14 L.Ed.2d 601 (1965), was not to limit the doctrine to state convictions, but to develop a principle that would allow more consistency in results. Teague, 109 S.Ct. at 1070. Injecting a federal/state dichotomy into the picture would defeat rather than further that goal of consistency. We hold, therefore, that the Teague principle of according on collateral review very limited retroactivity to new rules of criminal procedure applies to federal as well as state convictions. B. New Rule. “[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. at 1070 (emphasis in original); see Saffle, 110 S.Ct. at 1260; see also Butler, 110 S.Ct. at 1216; Penry, 109 S.Ct. at 2947. Under this principle, Gomez established a “new rule”. Prior to Gomez, both congress and the courts had followed a trend toward expanding the authority of magistrates, see Gomez, 109 S.Ct. at 2242-43; at least “51 districts had local rules expressly providing magistrates with authority to conduct voir dire.” United States v. Rubio, 722 F.Supp. 77, 86 (D.Del.1989), aff'd, 908 F.2d 965 (3d Cir.1990). The Supreme Court remained silent on the issue until it granted certiorari to Gomez after this circuit had held that the Federal Magistrates Act provided authority for jury selection by magistrates. United States v. Garcia, 848 F.2d 1324, 1332 (2d Cir.1988), rev’d sub nom. Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). After full briefing and argument, the Gomez Court reversed the second circuit and in effect required a change of jury selection procedures in 51 of this country’s 91 districts. Thus, the Court’s holding that the act did not authorize" }, { "docid": "4496436", "title": "", "text": "Hrubec’s sentences of special parole are proper and his motion under Fed.R.Crim.P. 35(a) is denied. CONCLUSION For the above reasons, Hrubec’s petition under 28 U.S.C. § 2255 (89-CV-3038) is DISMISSED, and his motion under Fed.R. Crim.P. 35(a) (84-CR-566) is DENIED. SO ORDERED. . Justice Stevens, joined by Justice Blackmun, concurred, but was unable to agree with the \"accurate-conviction” element incorporated by the plurality into the \"ordered-liberty\" exception to the bar on retroactivity in collateral proceedings. Id. at 1079-82. Justice Brennan, joined by Justice Marshall, vigorously dissented to incorporating an “accurate-conviction” element into the “ordered-liberty” exception and additionally opposed the making of retroactivity a threshold determination. Id. at 1084-94. . Some cases have recognized the differences between Teague and non-constitutional cases arising under § 2255; other cases, apparently, have held sub silentio that those differences are insignificant. See, e.g., United States v. Ayala, 894 F.2d 425, 429 n. 8 (D.C.Cir.1990) (assuming that Teague’s \"painstakingly formulated ‘retroactivity’ rules\" are applicable to § 2255 proceedings); United States v. Lopez-Pena, 890 F.2d 490, 493 n. 3 (1st Cir.1989) (same) (withdrawn from publication; rehearing pending and rehearing en banc filed); United States v. France, 886 F.2d 223, 226, 227 n. 2 (9th Cir.1989) (applying to Gomez standards having to do with retroactivity on direct appeal of new constitutional rules; leaving open the question of whether Gomez should be given retroactive effect in collateral proceedings, \"see\"-citing Teague); United States v. Makaweo, 730 F.Supp. 1016 (D.Hawaii 1990) (applying Teague to Gomez; recognizing that Gomez involved a non-constitutional procedural rule); United States v. Baron, 721 F.Supp. 259, 261 (D.Hawaii 1989) (recognizing that Gomez involved statutory interpretation whereas Teague involved constitutional adjudication; applying Teague to § 2255 proceedings); United States v. Rubio, 722 F.Supp. 77, 84 (D.Del.1989) (applying Teague in § 2255 proceeding brought based on Gomez). . But see United States v. France, 886 F.2d at 226 (Gomez decision was grounded in notions of trial accuracy); United States v. Baron, 721 F.Supp. at 262 (same; therefore applying Gomez retroactively in collateral proceeding). But see also United States v. Wey, 895 F.2d 429 (7th Cir. 1990) (criticizing France’s approach" }, { "docid": "4496437", "title": "", "text": "(withdrawn from publication; rehearing pending and rehearing en banc filed); United States v. France, 886 F.2d 223, 226, 227 n. 2 (9th Cir.1989) (applying to Gomez standards having to do with retroactivity on direct appeal of new constitutional rules; leaving open the question of whether Gomez should be given retroactive effect in collateral proceedings, \"see\"-citing Teague); United States v. Makaweo, 730 F.Supp. 1016 (D.Hawaii 1990) (applying Teague to Gomez; recognizing that Gomez involved a non-constitutional procedural rule); United States v. Baron, 721 F.Supp. 259, 261 (D.Hawaii 1989) (recognizing that Gomez involved statutory interpretation whereas Teague involved constitutional adjudication; applying Teague to § 2255 proceedings); United States v. Rubio, 722 F.Supp. 77, 84 (D.Del.1989) (applying Teague in § 2255 proceeding brought based on Gomez). . But see United States v. France, 886 F.2d at 226 (Gomez decision was grounded in notions of trial accuracy); United States v. Baron, 721 F.Supp. at 262 (same; therefore applying Gomez retroactively in collateral proceeding). But see also United States v. Wey, 895 F.2d 429 (7th Cir. 1990) (criticizing France’s approach to Gomez); United States v. Makaweo, 730 F.Supp. 1016 (D.Hawaii 1990) (disagreeing with Baron regarding retroactivity of Gomez). . At the time of trial the pertinent portion of § 1827 read accordingly: The presiding judicial officer ... shall utilize the services of the most available certified interpreter ... in any criminal or civil action initiated by the United States in a United States district court ... if the presiding judicial officer determines on such officer’s own motion or on the motion of a party that such party (including a defendant in a criminal case) ... speaks only or primarily a language other than the English language ... so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer.... Interpreters Act, Pub.L. No. 95-539, § 1827(d), 92 Stat. 2040 (1978). . Citations are to the transcript of the suppression hearing held February 27-28, 1985. . See also United States v. DeFeis, 530 F.2d 14, 15 (5th Cir.) (\"An entry obtained without force by ruse or deception is not" } ]

[ { "docid": "15141290", "title": "", "text": "its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” Structural Indus., 240 F.Supp.2d at 1332 (quoting Harmonized Commodity Description and Coding System, Explanatory Notes (“Explanatory Notes”), Note to Rule 3(b), (VIII) (2d ed.1996)). The Court of International Trade found that the clip frames at issue were “composite goods” governed by GRI 3(b), classifiable as either “other articles of wood” under subheading 4421 or as “glassware of a kind used for ... indoor decoration” under subheading 7013. Finding that “the glass component provide[d] the subject merchandise with its essential character,” the court held that Customs had properly classified the clip frames under subheading 7013. Id. at 1333. The court rejected Structural Industries’ contention that the clip frames should have been classified under a glass heading other than 7013, explaining that neither of the alternative headings urged by Structural Industries was appropriate. The merchandise could not be categorized under heading 7006 because that category “specifically excludes glass that is ‘framed or fitted with other materials,’ ” and the glass at issue was “fitted” with masonite and metal clips. Id. at 1334 (quoting HTSUS 7006.00.04). The court deemed heading 7020 “a ‘basket provision’ which is used only when the item is not properly classifiable under some other heading of the HTSUS” and explained that 7020 was inappropriate in this context because the clip frames were properly classifiable under heading 7013. Id. Structural Industries appeals the Court of International Trade’s decision, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). See Pomeroy Collection Ltd. v. United States, 336 F.3d 1370, 1371 (Fed.Cir.2003). DISCUSSION We review the Court of International Trade’s grant of summary judgment without deference. Mead Corp. v. United States, 283 F.3d 1342, 1345 (Fed.Cir.2002). I Assuming arguendo that the clip frames derive their essential character from glass and should be classified as such, Structural Industries argues that the Court of International Trade erroneously upheld Customs’ classification of the clip frames under 7013 as “[gjlassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes.”" } ]

[ { "docid": "20061278", "title": "", "text": "as a matter of law. See USCIT R. 56(c). Summary judgment is thus appropriate in a customs classification case if there is no genuine dispute of material fact (because the nature of the merchandise at issue is not in question), such that the decision on the classification of the merchandise turns solely on the proper meaning and scope of the relevant tariff provisions. See Fans Group, 581 F.3d at 1371-72. In the present case, the parties disagree as to the meaning and scope of the tariff provisions at issue. They are, however, in agreement as to the nature of the imported merchandise (except to the extent that the Government challenges CamelBak’s evidence on insulation, an issue which is rendered moot by the disposition below). This matter is therefore ripe for summary judgment. III. Analysis The tariff classification of all merchandise imported into the United States is governed by the General Rules of Interpretation (“GRIs”) and the Additional U.S. Rules of Interpretation (“ARIs”), which provide a framework for classification under the HTSUS, and are to be applied in numerical order. See BASF Corp. v. United States, 482 F.3d 1324, 1325-26 (Fed.Cir.2007); 19 U.S.C. § 1202. Most merchandise is classified pursuant to GRI 1, which provides for classification “according to the terms of the headings and any relative section or chapter notes.” See GRI 1, HTSUS. The Government maintains that each of the ten models of CamelBak merchandise at issue is properly classified as a whole as a “travel, sports [or] similar bag[ ]” under HTSUS subheading 4202.92.30, through the application of GRI 1 (as applied by GRI 6, which controls classification at the subheading level). According to the Government, the classification analysis therefore cannot proceed beyond GRI 1, because a single tariff provision—-subheading 4202.92.30—covers each of the items in its entirety. See Def.’s Brief at 6, 17-22; Def.’s Reply Brief at 1-10. In contrast, CamelBak contends that subheading 4202.92.30 (covering “travel, sports and similar bags”) “does not completely embrace specially designed ... [articles] that include a fully-integrated, insulated component ... designed to efficiently carry and maintain the temperature of a beverage.”" }, { "docid": "8820003", "title": "", "text": "and similar containers; traveling bags, insulated food and beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: 4202.92 With outer surface of sheeting of plastic or of textile materials: 4202.92 Insulated food or beverage bags: With outer surface of textile materials 4202.92.04 Beverage bags whose interior incorporates only a flexible plastic container of a kind for storing and dispensing potable beverages through attached flexible tubing 7% 4292.92.08 Other 7% 4292.92.30 Travel, sports and similar bags: Other 17.8% Applying the essential character test, CamelBak argued that the hydration component (i.e., the insulated beverage bag component) gave the subject articles their essential character and that the subject articles were properly classified as either “insulated food and beverage bags ... whose interior incorporates only a flexible plastic container of a kind for storing and dispensing potable beverages through attached flexible tubing” under subheading 4202.92.04 or, alternatively, “insulated food and beverage bags ... other” under subheading 4202.92.08, both dutiable at a rate of 7% ad valorem. The government argued that the subject articles were not composite goods, but rather that a single tariff provision — the “travel, sports, and similar bags” provision — applied to the articles in their entirety. Thus, the government contended that Customs properly classified the subject articles as a whole as “travel, sports, and similar bags” under subheading 4202.92.30, HTSUS, through a straightforward application of GRI 1. The Court of International Trade upheld Customs’ classification decision concerning the subject articles and granted judgment for the government. CamelBak appeals, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). II We review the grant of summary judgment by the Court of International Trade without deference. See, e.g., Structural Indus., Inc. v. United States, 356 F.3d 1366, 1368 (Fed.Cir.2004). We review questions of law de novo, including" }, { "docid": "8820021", "title": "", "text": "government failed to refute the evidence CamelBak adduced in support of its summary judgment motion. Thus, argues CamelBak, a remand to the Court of International Trade is not necessary and this court can classify the subject articles pursuant to GRI 3(b). We are not persuaded by CamelBak’s argument. First, we note that the essential character of the subject articles is a question of fact. See Home Depot, 491 F.3d at 1337 (“the application of this [essential character] test requires a fact-intensive analysis”); Pillsbury Co. v. United States, 431 F.3d 1377, 1380 (Fed.Cir.2005) (“Predominance [in the context of GRI 3(b) ] is a factual determination....”). Second, contrary to CamelBak’s argument, the parties dispute the essential character of the subject articles. Indeed, the government contends that CamelBak cannot prevail on a GRI 3(b) analysis because it failed to demonstrate by competent evidence that any component of the subject articles is classifiable as an insulated beverage bag. Therefore, remand to the Court of International Trade to resolve the GRI 3(b) issue in the first instance is appropriate. VIII For the foregoing reasons, we reverse the Court of International Trade’s grant of summary judgment to the government and remand the case to the Court of International Trade for further proceedings. REVERSED AND REMANDED . CamelBak markets the ten styles of merchandise at issue as \"Ares,” “Blow Fish,” “Day Star,” \"H.A.W.G.,” \"Scout,” \"M.U.L.E.,” “SnoDAWG,” “SnoBound,” \"Isis,” and \"Ventoux.” . References to the HTSUS and the General Rules of Interpretation throughout this opinion are to the 16th edition, published on December 30, 2003. . On June 26, 2000, CamelBak filed an Administrative Ruling Request with Customs, seeking a ruling on the classification of eleven of CamelBak's back-mounted packs. On December 18, 2001, Customs issued ruling number HQ964444, classifying three of CamelBak's packs in subheading 4202.92.05 as “Trunks, ... traveling bags, insulated food or beverage bags, ... knapsacks and backpacks, ... sports bags ... and similar containers ... of textile materials: ... With outer surface of sheeting of plastic or of textile materials: ... Insulated food and beverage bags ... With outer surface of textile materials.” Customs" }, { "docid": "17010478", "title": "", "text": "“travel, sports and similar bags,” a phrase used in the subheadings of 4202, to include backpacks. The court then determined that the imported backpacks met the dictionary definition of “backpack.” The court also noted that Processed’s entry papers identified the items as “backpacks” and that Processed’s advertising materials describe the items as “backpacks.” The court then determined that the backpacks met the test of Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed.Cir.1995), for the essential characteristics of items within heading 4202 (“organizing, storing, protecting, and carrying various items”). The court determined that the beach bag is a “similar container” and “similar bag” as recited in heading 4202 and under subheading 4202.92, respectively, and that similar reasoning thus applied to the beach bag. The trial court concluded that the backpacks and beach bag were properly classified under subheading 4202.92.45. Processed timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). DISCUSSION We review the Court of International Trade’s grant of summary judgment on tariff classifications de novo. Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed.Cir.2006). A classification decision involves two underlying steps: (1) determining the proper meaning of the tariff provisions, which is a question of law; and (2) then determining which heading the particular merchandise falls within, which is a question of fact. Id. In its opening brief on appeal, Processed argues that the trial court erred by granting summary judgment in favor of the government despite the existence of genuine issues of material fact as to the nature and use, avenue of sale, and weight-capacity of the merchandise. Processed argues that because the word “toy” is not defined by the HTSUS, the trial court has determined that “toys” are “articles whose principal use is amusement, diversion, or play, rather than practicality.” See Minnetonka Brands, Inc. v. United States, 110 F.Supp.2d 1020, 1027 (Ct. Int’l Trade 2000). Processed argues that each of the disputed issues above is material to the determination of such principal use under the multi-factor test for a “toy” laid out in Minnetonka. See id. Second, Processed argues that" }, { "docid": "148620", "title": "", "text": "515 F.3d 1213, 1220 (Fed.Cir.2008) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). “Absent contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings.... ” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed.Cir.1999). HTSUS GRIs and Additional U.S. Rules of Interpretation govern the classification of imported merchandise and are applied in numerical order. Id.; see also Mita Copystar Am. v. United States, 160 F.3d 710, 712 (Fed.Cir.1998) (“The first step in analyzing the classification issue is to determine the applicable subheadings, if possible, under GRI 1.”). In addition, “a court may refer to the Explanatory Notes of a tariff subheading, which do not constitute controlling legislative history but nonetheless are intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting subheadings.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994). According to GRI 1, “classification shall be determined according to the terms of the headings and any relative section or chapter notes.” “We apply GRI 1 as a substantive rule of interpretation, such that when an imported article is described in whole by a single classification heading or subheading, then that single classification applies, and the succeeding GRIs are inoperative.” CamelBak, 649 F.3d at 1364. HTSUS headings and subheadings that describe an article by a specific name are referred to as eo nomine provisions. Id. When goods are “in character or function something other than as described by a specific statutory provision — either more limited or more diversified — and the difference is significant,” then the goods cannot be classified under an eo nomine provision pursuant to GRI 1. Casio, Inc. v. United States, 73 F.3d 1095, 1097 (Fed.Cir.1996) (citation and internal quotation marks omitted). “When goods are prima facie classifiable under two or more headings or subheadings of HTSUS, we apply GRI 3 to resolve the classification.” CamelBak, 649 F.3d at 1365. We begin with GRI 3(a), which states: The heading which provides the most specific description shall be preferred to headings" }, { "docid": "8820020", "title": "", "text": "them from the scope of the eo nomine backpack provision. That is, the subject articles are not merely an improvement over the conventional backpack as the Court of International Trade concluded. Thus, the subject articles are not classifiable as a whole pursuant to GRI 1. Rather, they are composite goods made up of two components, which lack a single specific classification under HTSUS (i.e., there is no HTSUS provision for combination backpacks and hydration packs). Each component of the subject articles is classifiable under a separate subheading of 4202.92 HTSUS — the cargo component is classifiable as a “travel, sports, or similar bag[ ]” under 4202.92.30 HTSUS, and the hydration component is classifiable as an “insulated food and beverage bag” under 4202.92.04 (or 4202.92.08) HTSUS. Accordingly, GRI 3(b) controls the classification of the subject articles. VII Regarding the application of GRI 3(b), CamelBak contends that there are no factual disputes to resolve with respect to the essential character of the subject articles because the parties agree on the basic nature of the products and the government failed to refute the evidence CamelBak adduced in support of its summary judgment motion. Thus, argues CamelBak, a remand to the Court of International Trade is not necessary and this court can classify the subject articles pursuant to GRI 3(b). We are not persuaded by CamelBak’s argument. First, we note that the essential character of the subject articles is a question of fact. See Home Depot, 491 F.3d at 1337 (“the application of this [essential character] test requires a fact-intensive analysis”); Pillsbury Co. v. United States, 431 F.3d 1377, 1380 (Fed.Cir.2005) (“Predominance [in the context of GRI 3(b) ] is a factual determination....”). Second, contrary to CamelBak’s argument, the parties dispute the essential character of the subject articles. Indeed, the government contends that CamelBak cannot prevail on a GRI 3(b) analysis because it failed to demonstrate by competent evidence that any component of the subject articles is classifiable as an insulated beverage bag. Therefore, remand to the Court of International Trade to resolve the GRI 3(b) issue in the first instance is appropriate. VIII" }, { "docid": "8820011", "title": "", "text": "that the “travel, sports and similar bags” subheading encompassed the subject articles as a whole, the Court of International Trade applied GRI 1 and classified the subject articles under subheading 4202.92.30. Id. at 1345. In so doing, the Court of International Trade rejected CamelBak’s argument that the hydration component of the subject articles removed them from the scope of the eo nomine backpack provision, thereby making them new articles of commerce and composite goods. See id. Addressing CamelBak’s argument, the Court of International Trade explained that “[t]he mere fact that a piece of merchandise may consist of more than one component does not necessarily make that merchandise a ‘composite good’ subject to classification under GRI 3(b).” Id. The Court of International Trade then determined that “[t]here is nothing about incorporating into a backpack a compartment designed to contain (and maintain the temperature of) beverages that makes the backpack not a backpack.” Id. at 1346 (emphasis in original). That is, “a ‘backpack’ is a ‘backpack,’ no matter how ... elaborate it may be.” Id. In essence, the Court of International Trade regarded the hydration component of the subject articles as an incidental feature and did not consider its primary design or use as contributing to the classification characteristics of the articles. V On appeal, CamelBak concedes that the cargo component of the subject articles is prima facie classifiable as “travel, sports and similar bags” of subheading 4202.92, because it permits a consumer to carry some personal effects, as defined in Additional U.S. Note 1. CamelBak contends, however, that the subject articles cannot be classified under 4202.92.30 by reference to GRI 1 alone, because the “travel, sports and similar bags” provision does not cover the articles as a whole (i.e., the subject articles are not eo nomine backpacks). Rather, CamelBak repeats its argument that the subject articles are made up of two major components each of which is prima facie classifiable under a different subheading, i.e., the cargo component, which is prima facie classifiable under 4202.92.30 HTSUS and the hydration component, which is prima facie classifiable under 4202.92.04 HTSUS. Thus CamelBak argues" }, { "docid": "148618", "title": "", "text": "equipment under subheading 9015.80.80, HTSUS. Id. In classifying the Clock models, the trade court focused on the “numerous and predominant clock-related functions and clock-related marketing.” Id. The court noted that La Crosse described these models as atomic or projection clocks in marketing materials. Id. The trade court also observed that, although the Clock models display weather information (including a forecast), the Clock models “display[ed] time information in larger type size than weather information.” Id. Consequently, the court determined that the Clock models were properly classified under subheading 9105.91.40. Id. at 1362. La Crosse timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). II. Arguments on Appeal On appeal, La Crosse challenges the Court of International Trade’s classification of a number of the Clock and Weather Station models, which the trade court placed under subheadings 9105.91.40 and 9025.80.10, respectively. According to La Crosse, the models at issue on appeal should have been classified pursuant to GRI 1 as “meteorological ... instruments and appliances” under 9015.80.80, HTSUS. The government, however, contends that the trade court properly classified the models pursuant to GRI 3(b). III. Legal Standards “We review the grant of summary judgment by the Court of Interna tional Trade without deference.” CamelBak, 649 F.3d at 1364. “The ultimate issue as to whether particular imported merchandise has been classified under an appropriate tariff provision is a question of law subject to de novo review.” Marcel Watch Co. v. United States, 11 F.3d 1054, 1056 (Fed.Cir.1993). Tariff classification under HTSUS generally involves two steps: “(1) ascertaining the proper meaning of specific terms within the tariff provision and (2) determining whether the merchandise at issue comes within the description of such terms as properly construed.” Id. The first step presents a question of law, which we review de novo. Id. The second step presents a question of fact, which we review for clear error. Id. “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a ‘definite and firm conviction that a mistake has been committed.’ ” Timber Prods. Co. v. United States," }, { "docid": "4072941", "title": "", "text": "classifiable as unit furniture. Id. at 1204-05. However, if an end user decided to accessorize the wall panels “only with hooks, as opposed to shelves or baskets,” then the completed storeWALL system is “merely a rack, which is expressly excluded from coverage.... ” Id. at 1205. The Court of International Trade concluded that because a completed store-WALL system is not always “unit furniture,” the wall panels and locator tabs are not prima facie classifiable under Heading 9403 because imported parts must be dedicated solely or principally for use with the classified item. Id. Having concluded that the wall panels and locator tabs are not classifiable under Heading 9403, the Court of International Trade determined that Customs properly classified both articles under Subheading 3926.90.98, HTSUS as “Other articles of plastics ...: Other: Other.” Id. at 1206. StoreWALL appeals and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). Discussion We review the Court of International Trade’s ruling on summary judgment de novo. See, e.g., Drygel, Inc. v. United States, 541 F.3d 1129, 1133 (Fed. Cir.2008). Proper classification of goods under the HTSUS entails a two step process: First, ascertaining the meaning of specific terms in the tariff provision; and second, determining whether the goods come within the description of those terms. See, e.g., Millenium Lumber Distrib., Ltd. v. United States, 558 F.3d 1326, 1328 (Fed.Cir.2009). “The interpretation of the headings and subheadings of the HTSUS is a question of law reviewed without deference.” Drygel, 541 F.3d at 1133. Whether the goods fall within the scope of the headings and subheadings is a question of fact and storeWALL bears the burden of proving the classification is erroneous because Customs’ classification decisions are presumed correct. Millenium Lumber, 558 F.3d at 1328. We review the factual findings of the Court of International Trade for clear error. Deckers Corp. v. United States, 532 F.3d 1312, 1315 (Fed.Cir.2008). The General Rules of Interpretation (GRI) govern classifications under HTSUS. Millenium Lumber, 558 F.3d at 1328. “Under GRI 1, the court must determine the appropriate classification ‘according to the terms of the headings and any relative section or" }, { "docid": "148619", "title": "", "text": "properly classified the models pursuant to GRI 3(b). III. Legal Standards “We review the grant of summary judgment by the Court of Interna tional Trade without deference.” CamelBak, 649 F.3d at 1364. “The ultimate issue as to whether particular imported merchandise has been classified under an appropriate tariff provision is a question of law subject to de novo review.” Marcel Watch Co. v. United States, 11 F.3d 1054, 1056 (Fed.Cir.1993). Tariff classification under HTSUS generally involves two steps: “(1) ascertaining the proper meaning of specific terms within the tariff provision and (2) determining whether the merchandise at issue comes within the description of such terms as properly construed.” Id. The first step presents a question of law, which we review de novo. Id. The second step presents a question of fact, which we review for clear error. Id. “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a ‘definite and firm conviction that a mistake has been committed.’ ” Timber Prods. Co. v. United States, 515 F.3d 1213, 1220 (Fed.Cir.2008) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). “Absent contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings.... ” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed.Cir.1999). HTSUS GRIs and Additional U.S. Rules of Interpretation govern the classification of imported merchandise and are applied in numerical order. Id.; see also Mita Copystar Am. v. United States, 160 F.3d 710, 712 (Fed.Cir.1998) (“The first step in analyzing the classification issue is to determine the applicable subheadings, if possible, under GRI 1.”). In addition, “a court may refer to the Explanatory Notes of a tariff subheading, which do not constitute controlling legislative history but nonetheless are intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting subheadings.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994). According to GRI 1, “classification shall be determined according to the terms of the headings and any relative section" }, { "docid": "8820013", "title": "", "text": "that the Court of International Trade erred when it failed to conduct a GRI 3(b) essential character analysis. The government, relying on the common meaning of the term “backpack” and Additional U.S. Note 1 to Chapter 42, responds that the Court of International Trade correctly sustained Customs’ classification of the subject articles under 4202.92.30 HTSUS as “travel, sports and similar bags” pursuant to GRI 1 because backpacks, as a whole, are designed to carry and organize a multitude of personal effects, including water. Thus, the backpack provision encompasses the subject articles in their entirety. The government further contends that, as an eo nomine provision, subheading 4202.92.30 covers all forms of travel and sports bags including those that carry water in a water bladder. Accordingly, the government contends that a GRI 3(b) analysis is not triggered in this case because the Court of International Trade correctly classified the subject articles pursuant to GRI 1. VI In this case, we are called upon to determine whether the Court of International Trade correctly classified the subject articles as “backpacks” falling within the “sports, travel, and similar bags” eo no-mine provision of subheading 4202.92.30, HTSUS. If the subject articles fall within the scope of the eo nomine backpack provision then, under Mita Copystar, GRI 1 mandates that the subject articles be classified as “travel, sports and similar bags” and GRI 3 is not triggered. Turning to the classification of the subject articles, we note that although Casio sets forth the proposition that a change in identity removes an article from an eo nomine provision, it does not provide the analytical tools or factors for making that determination. The case law of this and our predecessor court, however, provides several analytical tools or factors we can use to assess whether the subject articles are beyond the reach of the eo nomine backpack provision. These factors include the design of the subject articles, see Casio, 73 F.3d at 1098 (affirming the trial court’s finding that the subject articles— synthesizers — were not beyond the scope of the eo nomine “electronic musical instrument” tariff provision because the" }, { "docid": "16635331", "title": "", "text": "torsional strength requirements, and could cut mating threads without separate tapping. GRK screws also resemble standard wood screws while possessing modifications of the various parameters that the court determined were characteristic of the “other wood screws” classification. The court began its analysis by determining that because it would be reasonable to conclude that the GRK screws were both self-tapping and wood screws, the analysis had to proceed beyond GRI 1. It then skipped GRI 2, as it applies only to goods that are either unfinished or incomplete. Based on its working definitions of the subheadings, the court found that GRI 3(a) was inapplicable, as the subheadings described articles at similar levels of specificity. It also determined that GRI 3(b) did not to apply, as the screws were not composite goods. The Court of International Trade finally settled on the “rarely used” GRI 3(c), in which goods are classified under the subheading that occurs last in numerical order — in this case, self-tapping screws, which are classified under subheading 7318.14.10 (by contrast to other wood screws under 7318.12.00). Id. at 1356. Accordingly, it ruled in favor of GRK, holding that the subject screws should be classified as self-tapping screws. The United States appeals, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). Ill The first step of a classification decision is to determine the proper meaning of a tariff provision, which is a question of law reviewed de novo. Universal Elecs. Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir.1997). The second step is to determine whether the subject imports are within a possible heading, which is a question of fact reviewed for clear error. Id. We review the Court of International Trade’s grant of summary judgment as a matter of law, deciding de novo the interpretation of tariff provisions as well as whether there are genuine disputes of material fact. Millenium Lumber Distribution Ltd. v. United States, 558 F.3d 1326, 1328 (Fed.Cir.2009). In determining the proper meaning of a tariff provision, we have held that where the HTSUS does not expressly define a term, “the correct meaning of the" }, { "docid": "8820000", "title": "", "text": "Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge BRYSON. CLEVENGER, Circuit Judge. This customs case concerns the proper classification of ten styles of CamelBak Products, LLC’s (“CamelBak”) back-mounted packs (“subject articles”). CamelBak appeals the judgment and decision of the United States Court of International Trade denying CamelBak’s motion for summary judgment, granting the United States’ (the “government”) cross-motion for summary judgment, and holding that the merchandise at issue was properly classified as “travel, sports, and similar bags” under subheading 4202.92.30 of the Harmonized Tariff Schedule of the United States (“HTSUS”). CamelBak Prods., LLC v. United States, 704 F.Supp.2d 1335 (Ct. Int’l Trade 2010) (“CamelBak”). For the reasons set forth below, we reverse and remand the case for further proceedings. I The subject articles are imported back-mounted packs used for outdoor activities and athletics, including cycling, running, hiking and skiing, and are designed to deliver water to the user in a “hands-free” fashion, allowing the user to consume water on-the-go without having to interrupt activity. Each of the subject articles is a textile bag with padded adjustable shoulder straps and features: (a) a polyurethane reservoir or bladder surrounded by a closed-cell polyethylene foam compartment designed to carry and maintain the temperature of water or another beverage; (b) a hydration delivery system composed of flexible tubing attached to the reservoir, a bite valve and a shutoff valve; and (c) a cargo compartment designed to hold food, clothing, gear and supplies. Each reservoir has a capacity of between 35 and 100 ounces of liquid, and each cargo compartment can accommodate between 300 and 1680 cubic inches, depending on the style of pack. Between August 6, 2004 and August 27, 2004, U.S. Customs and Border Protection (“Customs”) liquidated and classified the merchandise at issue under subheading 4202.92.30, HTSUS, as “Trunks, ... traveling bags, insulated food or beverage bags, ... knapsacks and backpacks, ... sports bags ... and similar containers ... of textile materials: ... With outer surface of sheeting of plastic or of textile materials: ... travel, sports and similar bags” at a rate of duty of" }, { "docid": "20061279", "title": "", "text": "applied in numerical order. See BASF Corp. v. United States, 482 F.3d 1324, 1325-26 (Fed.Cir.2007); 19 U.S.C. § 1202. Most merchandise is classified pursuant to GRI 1, which provides for classification “according to the terms of the headings and any relative section or chapter notes.” See GRI 1, HTSUS. The Government maintains that each of the ten models of CamelBak merchandise at issue is properly classified as a whole as a “travel, sports [or] similar bag[ ]” under HTSUS subheading 4202.92.30, through the application of GRI 1 (as applied by GRI 6, which controls classification at the subheading level). According to the Government, the classification analysis therefore cannot proceed beyond GRI 1, because a single tariff provision—-subheading 4202.92.30—covers each of the items in its entirety. See Def.’s Brief at 6, 17-22; Def.’s Reply Brief at 1-10. In contrast, CamelBak contends that subheading 4202.92.30 (covering “travel, sports and similar bags”) “does not completely embrace specially designed ... [articles] that include a fully-integrated, insulated component ... designed to efficiently carry and maintain the temperature of a beverage.” See PL’s Brief at 16. According to CamelBak, the items at issue constitute “composite goods” consisting of two components—a “cargo component” (which, according to CamelBak, is prima facie classifiable as a “travel, sports [or] similar bag[]”), and an “insulated beverage bag component” (which CamelBak asserts is prima facie classifiable as an “insulated beverage bag”). See Pl.’s Brief at 14-17; see also id. at 8; Pl.’s Reply Brief at 1-2. CamelBak argues further that, “[b]ecause the[ ] two subheadings ‘each refer to part only of the materials’ contained in the [subject merchandise],” the merchandise cannot be classified pursuant to GRI 3(a) (which generally provides for classification under the most specific heading and is known as the “rule of relative specificity”). See Pl.’s Reply Brief at 2; GRI 3(a), HTSUS. CamelBak therefore concludes that each of the models at issue must be classified as an “insulated food or beverage bag” pursuant to GRI 3(b), because—according to CamelBak—it is the special “hydration” feature (ie., the so-called “insulated beverage bag component”) that gives the subject merchandise its “essential character.”" }, { "docid": "8820005", "title": "", "text": "the interpretation of the terms of the HTSUS, whereas factual findings of the Court of International Trade, including which heading the merchandise falls within, are reviewed for clear error. Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334, 1335 (Fed.Cir.2007). “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a ‘definite and firm conviction that a mistake has been committed.’ ” Timber Prods. Co. v. United States, 515 F.3d 1213, 1220 (Fed.Cir.2008) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Ill A classification decision involves two underlying steps: (1) ascertaining the proper meaning of the tariff provisions, which is a question of law; and (2) determining which heading the particular merchandise falls within, which is a question of fact. Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed.Cir.2006). The GRIs govern classifications of imported goods under HTSUS and we apply them in numerical order. BASF Corp. v. United States, 482 F.3d 1324, 1325-26 (Fed.Cir. 2007). “Under GRI 1, the court must determine the appropriate classification ‘according to the terms of the headings and any relative section of chapter notes’ with all terms construed to their common commercial meaning.” Millenium Lumber Distrib., Ltd. v. United States, 558 F.3d 1326, 1328-29 (Fed.Cir.2009). We apply GRI 1 as a substantive rule of interpretation, such that when an imported article is described in whole by a single classification heading or subheading, then that single classification applies, and the succeeding GRIs are inoperative. See Mita Copystar Am. v. United States, 160 F.3d 710, 712 (Fed.Cir.1998). With regard to assessing an imported article pursuant to GRI 1, we consider a HTSUS heading or subheading an eo nomine provision when it describes an article by a specific name. Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed.Cir.1999). Absent limita tion or contrary legislative intent, an eo nomine provision “include[s] all forms of the named article!,]” even improved forms. Id. However, as we held in Casio, Inc. v. United States, 73 F.3d 1095" }, { "docid": "1876310", "title": "", "text": "motion for summary judgment and granted the United States’ cross-motion for summary judgment. DISCUSSION A. Standard of Review The grant and denial of summary judgment by the Court of International Trade are matters of law that we review de novo. See Jay v. Secretary of the Dep’t of Health and Human Servs., 998 F.2d 979, 982 (Fed.Cir.1993) (reviewing grant and denial of summary judgment by the United States Court of Federal Claims de novo); Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994) (reviewing grant of summary judgment by the Court of International Trade de novo). A classification of goods by Customs is presumed to be correct. 28 U.S.C. § 2639(a)(1) (1994). Therefore, the party challenging Customs’ classification, Stadelman in this case, bears the burden of proving that Customs’ classification was incorrect. Id. The ultimate question of the proper interpretation of a tariff term is a question of law that we review de novo. Mita Copystar, 21 F.3d at 1082. Proof of commercial designation is a question of fact reviewed under the clearly erroneous standard. Rohm & Haas Co. v. United States, 727 F.2d 1095, 1097 (Fed.Cir.1984). “A finding is ‘clearly erroneous’ when although there is evidence to support' it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). B. The Proper Meaning of “Baboen” To determine the meaning of a tariff classification term, only the term used in the tariff classification may be analyzed. Cf. Neuman & Schwiers Co., Inc. v. United States, 24 C.C.P.A. 127, 132 (1936) (“[C]ourts have never broadened the rule [of determining commercial designation] so far as to pennit proof of commercial designation of terms other than the precise terms used in the statute.”). “Baboen” is the term designated in the relevant portion of subheading 4412.11.20, HTSUS (1992-1995). VIROLA is not an HTSUS term at issue in this case. Consequently, this court will only assess the meaning of the tariff term “Baboen.” The" }, { "docid": "8820012", "title": "", "text": "the Court of International Trade regarded the hydration component of the subject articles as an incidental feature and did not consider its primary design or use as contributing to the classification characteristics of the articles. V On appeal, CamelBak concedes that the cargo component of the subject articles is prima facie classifiable as “travel, sports and similar bags” of subheading 4202.92, because it permits a consumer to carry some personal effects, as defined in Additional U.S. Note 1. CamelBak contends, however, that the subject articles cannot be classified under 4202.92.30 by reference to GRI 1 alone, because the “travel, sports and similar bags” provision does not cover the articles as a whole (i.e., the subject articles are not eo nomine backpacks). Rather, CamelBak repeats its argument that the subject articles are made up of two major components each of which is prima facie classifiable under a different subheading, i.e., the cargo component, which is prima facie classifiable under 4202.92.30 HTSUS and the hydration component, which is prima facie classifiable under 4202.92.04 HTSUS. Thus CamelBak argues that the Court of International Trade erred when it failed to conduct a GRI 3(b) essential character analysis. The government, relying on the common meaning of the term “backpack” and Additional U.S. Note 1 to Chapter 42, responds that the Court of International Trade correctly sustained Customs’ classification of the subject articles under 4202.92.30 HTSUS as “travel, sports and similar bags” pursuant to GRI 1 because backpacks, as a whole, are designed to carry and organize a multitude of personal effects, including water. Thus, the backpack provision encompasses the subject articles in their entirety. The government further contends that, as an eo nomine provision, subheading 4202.92.30 covers all forms of travel and sports bags including those that carry water in a water bladder. Accordingly, the government contends that a GRI 3(b) analysis is not triggered in this case because the Court of International Trade correctly classified the subject articles pursuant to GRI 1. VI In this case, we are called upon to determine whether the Court of International Trade correctly classified the subject articles as" }, { "docid": "12099224", "title": "", "text": "of wood.” The government maintained that Millenium’s imported merchandise was standard dimensional lumber, classifiable under heading 4407 as “[w]ood sawn or chipped lengthwise ... of a thickness exceeding 6 mm.” The court agreed with the government and granted summary judgment accordingly. Millenium, 2007 WL 1116148, at *1, 7. II Millenium appeals the grant of summary judgment upholding Customs’ classification of the imported lumber under heading 4407. Millenium asserts that the court should have instead granted Millenium’s summary judgment motion and classified the lumber under heading 4418 or, in the alternative, under heading 4421. We have jurisdiction over Millenium’s appeal pursuant to 28 U.S.C. § 1295(a)(5). We review a grant of summary judgment by the Court of International Trade for correctness as a matter of law and decide de novo the proper interpretation of the tariff provisions as well as whether there are genuine issues of material fact to preclude summary judgment. Rollerblade, Inc. v. United States, 282 F.3d 1349, 1351 (Fed.Cir.2002). In reviewing summary judgment decisions, we must bear in mind the parties’ burdens as well as the eviden-tiary standards under the applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Proper classification of goods under the HTSUS entails first ascertaining the meaning of specific terms in the tariff provisions and then determining whether the subject merchandise comes within the description of those terms. Rollerblade, 282 F.3d at 1351. The proper meaning of the tariff provisions is a question of law, whereas the determination of whether the subject imports properly fall within the scope of the possible headings is a question of fact. Universal Elecs. Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir.1997). Because Customs’ classification decisions are presumed correct, Millenium bears the burden of proving otherwise. See Rollerblade, 282 F.3d at 1351. The General Rules of Interpretation (“GRIs”) govern classification of merchandise under the HTSUS. N. Am. Processing Co. v. United States, 236 F.3d 695, 698 (Fed.Cir.2001). Under GRI 1, the court must determine the appropriate classification “according to the terms of the headings and any relative section" }, { "docid": "8820008", "title": "", "text": "GRI 3 to resolve the classification. Home Depot, 491 F.3d at 1336. We apply GRI 3(a) when the goods, as a whole, are prima facie classifiable under two or more headings or subheadings to determine which heading provides the most specific description of the goods. See GRI 3(a); Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246, 1252 (Fed.Cir.2004). When two subheadings “each refer to part only of the materials ... contained in ... composite goods,” they are “regarded as equally specific” under GRI 3(a) and we apply GRI 3(b) to resolve the classification. GRI 3(a). GRI 3(b) instructs that we classify composite goods made up of different components “as if they consisted of the material or component which gives them their essential character.” IV In reaching its conclusion that the subject articles are backpacks, the Court of International Trade began its analysis by applying GRI 1 to determine whether the subject articles were classifiable as a whole under a particular heading and subheadings. Turning to heading 4202, which the parties agreed applied to the subject articles, the Court of International Trade defined the terms “traveling bag,” “sports bag,” “insulated food or beverage bag,” and “backpack” and concluded that the subject articles were properly classifiable under heading 4202, HTSUS. CamelBak, 704 F.Supp.2d at 1340. The Court of International Trade next determined that the subject articles were composed of an outer surface of textile materials and properly classifiable under 4202.92, HTSUS. Id. at 1342. Turning to the final set of HTSUS subheadings applicable to the subject articles, the Court of International Trade noted that there were four competing subheadings: “ ‘[i]nsulated food or beverage bags,’ ‘[t]ravel, sports and similar bags,’ ‘Musical instrument cases,’ and ‘[o]ther.’ ” Id. The Court of International Trade then looked to Additional U.S. Note 1 to HTSUS Chapter 42 for guidance. Additional U.S. Note 1 explains that the subheading “travel, sports and similar bags” is broad and refers to “goods ... of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading....”/d The Court of" }, { "docid": "8820004", "title": "", "text": "only a flexible plastic container of a kind for storing and dispensing potable beverages through attached flexible tubing” under subheading 4202.92.04 or, alternatively, “insulated food and beverage bags ... other” under subheading 4202.92.08, both dutiable at a rate of 7% ad valorem. The government argued that the subject articles were not composite goods, but rather that a single tariff provision — the “travel, sports, and similar bags” provision — applied to the articles in their entirety. Thus, the government contended that Customs properly classified the subject articles as a whole as “travel, sports, and similar bags” under subheading 4202.92.30, HTSUS, through a straightforward application of GRI 1. The Court of International Trade upheld Customs’ classification decision concerning the subject articles and granted judgment for the government. CamelBak appeals, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). II We review the grant of summary judgment by the Court of International Trade without deference. See, e.g., Structural Indus., Inc. v. United States, 356 F.3d 1366, 1368 (Fed.Cir.2004). We review questions of law de novo, including the interpretation of the terms of the HTSUS, whereas factual findings of the Court of International Trade, including which heading the merchandise falls within, are reviewed for clear error. Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334, 1335 (Fed.Cir.2007). “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a ‘definite and firm conviction that a mistake has been committed.’ ” Timber Prods. Co. v. United States, 515 F.3d 1213, 1220 (Fed.Cir.2008) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Ill A classification decision involves two underlying steps: (1) ascertaining the proper meaning of the tariff provisions, which is a question of law; and (2) determining which heading the particular merchandise falls within, which is a question of fact. Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed.Cir.2006). The GRIs govern classifications of imported goods under HTSUS and we apply them in numerical order. BASF Corp. v. United States, 482 F.3d 1324," } ]

[ { "docid": "22809462", "title": "", "text": "compensated for by insurance or otherwise.’ Revenue Act of 1918. “To prevail in its contention, the petitioner must prove that the loss was sustained in the taxable year. The evidence is clear that the Universal Packing Company became insolvent and ceased to function prior to November 1, 1918, a date -within the taxable year. It is also in evidence that the insolvent corporation owne'd certain assets and that' the sale of such assets and the final liquidation of its business were not completed within the fiscal year ended January 31,1919. There is no convincing evidence that any loss was sustained in the taxable year. “Judgment will be entered for the Commissioner.” The applicable principles of law are not in controversy, and we content ourselves with little more than a bare statement of them. The taxpayer was not entitled to the deduction merely because the stock may have subsequently become worthless or because, in the light only of subsequent developments, it may appear to have been inherently worthless during the year in question. Nor can the deduction be claimed for a mere shrinkage in value. A loss may be said to be actually sustained in a given year if, within that year, it reasonably appears that such stock has, in fact,' become worthless. It is not requisite that there be a charge-off on the books of the taxpayer, and the ultimate fact of worthlessness may be shown by circumstances, as in other eases where that question is in issue. But the burden is on the taxpayer to establish the fact by reasonably convincing evidence. Section 900h, Revenue Act 1924 (43 Stat. 337), being 26 USCA § 1219 (Comp. St. § 6371⅚b), and rule 20 of the Board promulgated thereunder; section 907 (а) of the Revenue Act of 1924, added by section 1000, Revenue Act of 1926 (44 Stat. pt. 2, p. 107), being 26 USCA § 1219(a), and rule 30 of the Board thereunder; Committee Report, Senate Report No. 52, Sixty-Ninth Congress, First Session, p. 36; Anderson v. Farmers’ Loan & Trust Co. (C. C. A.) 241 F. 322; United States" } ]

[ { "docid": "6021122", "title": "", "text": "was paid for the common, and assigned as cost to the preferred the entire consideration given for both. Under the Revenue Act of 1926 (26 U. S. C. 1226; 26 USCA § 1226) the only decisions of the Board of Tax Appeals that the courts are permitted to modify or reverse are those “not in accordance with law.” It has been held that the review under this statute is limited to matters of law, such as may be raised by writ of error upon review of a judgment entered on a verdict of a jury — that is, to a determination of whether there is evidence to support the findings on which the decision is based, and, if so, whether the findings support the decision as a matter of law. Avery v. Commissioner of Internal Revenue (C. C. A.) 22 F.(2d) 6, 55 A. L. R. 1277; Royal Packing Co. v. Commissioner of Internal Revenue (C. C. A.) 22 F.(2d) 536; Bishoft v. Commissioner of Internal Revenue. (C. C. A.) 27 F.(2d) 91. The statute lacks the provision, common to statutes dealing with fact-finding agencies, that the findings of fact shall be conclusive if supported by evidence — indeed, there is no provision- requiring the board to make such findings. The absence of such provision from this statute gives some support to the view that the power of review is as in equity. As the facts in this ease, however, do not require it, we do not decide whether this review is of that character, or is as at law, but proceed to consider the questions presented from the point of view of the cases cited. The first contention of the petitioner is that there was no income for the year 1918 because the purchase of the stock was not completed until 1919, when petitioner finished selling the 3,500 units which he was required to sell for the account of the National Dairy Company. We find ample evidence to support the ruling of the board on this point. The stock was acquired and paid for in 1918, and the tax" }, { "docid": "8837081", "title": "", "text": "(3d Cir., June 10, 1977) (redress of grievances; due process). B. Substantive Issues Petitioner contends that he is entitled to certain deductions he claimed on his tax return. In support of his claim, however, he has introduced no evidence other than his assertion that his return, signed under penalty of perjury, was correct when it was filed. The fact that a return is signed under penalty of perjury is not sufficient to substantiate deductions claimed on it. Roberts v. Commissioner, supra at 837, 839; Halle v. Commissioner, 7 T.C. 245 (1946), affd. 175 F.2d 500 (2d Cir. 1949), cert. denied 338 U.S. 949 (1950). Deductions are a matter of legislative grace. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). Respondent’s determination — disallowing the claimed deductions — is prima facie correct, and the burden of proof rests with petitioner. Welch v. Helvering, 290 U.S. 111 (1933); Rule 142(a), Tax Court Rules of Practice and Procedure. Petitioner presented no evidence to show that respondent erred; therefore, respondent’s determination is sustained. Helvering v. Taylor, 293 U.S. 507 (1935); Figueiredo v. Commissioner, supra at 1512-1513; Mayerson v. Commissioner, 47 T.C. 340, 348-349 (1966). II. Damages The next issue is whether this Court should grant respondent’s motion to award damages to the United States under section 6673 which provides: Whenever it appears to the Tax Court that proceedings before it have been instituted by the taxpayer merely for delay, damages in an amount not in excess of $500 shall be awarded to the United States by the Tax Court in its decision. Damages so awarded shall be assessed at the same time as the deficiency and shall be paid upon notice and demand from the Secretary and shall be collected as a part of the tax. In light of petitioner’s tactics of delay, and his consistent refusal to address the merits, we conclude that we must award damages to the United States. Congress in 1926 enacted the predecessor of section 6673 which provided as follows: FRIVOLOUS APPEALS TO BOARD SEC. 911. Whenever it appears to the Board that proceedings before it" }, { "docid": "2949486", "title": "", "text": "conflict with statutory provisions on the same subject-matter. United States v. Eaton, 144 U. S. 677, 12 S. Ct. 764, 36 L. Ed. 591; United States v. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L. Ed. 563; Maryland Cas. Co. v. United States, 251 U. S. 342, 349, 40 S. Ct. 155, 64 L. Ed. 297; Daeuffer-Lieberman Brewing Co. v. United States (C. C. A.) 36 F.(2d) 568. In the case at bar we find no conflict between the regulation quoted and the statutory provision, section 204(a)(5) of the Revenue Act of 1926, 26 USCA § 935(a)(5) reading as follows: “Sec. 204. (a) The basis for determining the gain or loss from the sale or other disposition of property acquired after February 28, 1913, shall be the cost of such property ; except that — “(5) If the property was acquired by bequest, devise, or inheritance, the basis shall be the fair market value of such property at the time of such acquisition.” Giving effect, therefore, to the regulation provision, it is clear that the finding of the Board of Tax Appeals relative to the appraised value of the stock for the purpose of the federal estate tax is a finding of its fair market value when acquired by appellant. Another contention of petitioner is that the Board of Tax Appeals in making its findings and conclusions proceeded on an erroneous theory of law, viz.: That the hoard was bound to approve the valuation of the commissioner unless the presumption in favor of its correctness was overcome by convincing proof by the petitioner. We shall not undertake to follow counsel for petitioner in their discussion as to the theoretical status of presumptions in the law of evidence. It will suffice to ascertain whether the rulings and action of the Board of Tax Appeals relative to the evidence in the instant case were in accord with well-established principles. Rule 30 of the Board of Tax Appeals reads as follows: “Burden of Proof.- — The burden of proof shall be upon the petitioner, except that in respect of any" }, { "docid": "11963552", "title": "", "text": "[amended to read ‘(not counting Sunday or a legal holiday in the District of Columbia as the ninetieth day)’ by section 501 of the Revenue Act of 1934, c. 277, 48 Stat. 755], the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. * * * “(c) «If the taxpayer does not file a petition with the Board within the time prescribed in subsection (a) of this section, the deficiency, notice of which has been mailed to the taxpayer, shall be assessed, and shall be paid upon notice and demand from the collector.” If the taxpayer filed a petition as required by the act, asking redetermination of a deficiency theretofore determined by the Commissioner within the period limited by the act, supra, then the Board had jurisdiction to consider the petition. If such petition was not so filed within the time limited by the act, the Board, was without jurisdiction to consider the matter. The requirement that petitions for redeterminations be filed within a specified period after the mailing of the deficiency notice “is statutory and jurisdictional and is not merely procedural.” Lewis-Hall Iron Works v. Blair, 57 App.D.C. 364, 23 F.2d 972, 974, certiorari denied 277 U.S. 592, 48 S.Ct. 529, 72 L.Ed. 1004. The Board has power to prescribe rules of practice and procedure under the provisions of section 907(a) of the Revenue Act of 1924, as amended by section 601 of the Revenue Act of 1928, 26 U.S.C.A. § 611, which provides as follows: “The proceedings of the Board and its divisions shall be conducted in accordance with such rules of practice and procedure (other than rules of evidence) as the Board may prescribe and in accordance with the rules of evidence applicable in courts of equity of the District of Columbia.” Acting under the authority of section 907(a), supra, the following rules of practice have been prescribed by the Board: “Rule 1. The office of the Board at Washington, D. C., will be open each business day from 9 o’clock a.m. to 4:30 o’clock p.m.” \"Rule 7. An" }, { "docid": "11963553", "title": "", "text": "the mailing of the deficiency notice “is statutory and jurisdictional and is not merely procedural.” Lewis-Hall Iron Works v. Blair, 57 App.D.C. 364, 23 F.2d 972, 974, certiorari denied 277 U.S. 592, 48 S.Ct. 529, 72 L.Ed. 1004. The Board has power to prescribe rules of practice and procedure under the provisions of section 907(a) of the Revenue Act of 1924, as amended by section 601 of the Revenue Act of 1928, 26 U.S.C.A. § 611, which provides as follows: “The proceedings of the Board and its divisions shall be conducted in accordance with such rules of practice and procedure (other than rules of evidence) as the Board may prescribe and in accordance with the rules of evidence applicable in courts of equity of the District of Columbia.” Acting under the authority of section 907(a), supra, the following rules of practice have been prescribed by the Board: “Rule 1. The office of the Board at Washington, D. C., will be open each business day from 9 o’clock a.m. to 4:30 o’clock p.m.” \"Rule 7. An original and four clear copies of the petition, either printed or typewritten * * *, shall be filed with the Board at Washington, D. C. * * * ” “Rule 61. * * * when the time for performing any act is prescribed by statute nothing in these rules shall be deemed to be a limitation or extension of the statutory time fixed.” Nothing in section 907(a), supra, nor in the “rules of practice and procedure” prescribed thereunder, authorizes the Board to vary or amend the statute conferring jurisdiction upon the Board to hear and determine taxpayers’ petitions. The Board was without power to dispense even on equitable grounds with the' statutory requirement that a petition be filed “with the Board of Tax Appeals” within the time allowed. Poynor v. Commissioner, 5 Cir., 81 F.2d 521. To similar effect, see Yturbide’s Executors v. United States, 22 How., 63 U.S., 290, 16 L.Ed. 342, and Muckelroy v. Baldwin, 8 Cir., 70 F.2d 728. It is said in Poynor v. Commissioner, supra, 81 F.2d 521, at page" }, { "docid": "2708888", "title": "", "text": "it to others; and that it afforded no basis for a determination of the incidence of the tax and failed to conform to the provisions of Sections 902 and 903 of the statute. In its petition to the Board the petitioner not only took issue with the rulings of the Commissioner but insisted that the Corn-missioner erred in not holding that Sections 902 and 903 of Title VII of the Revenue Act of 1936 were unconstitutional in so far as they purported to condition refund upon proof that the taxpayer had borne the burden of the tax. The Board dismissed the petition upon the ground that the refund claim failed to comply with the provisions of the Act here involved and of the Treasury Regulations .promulgated thereunder. Our question is, whether the order of dismissal was justified. It is provided by Sec. 902 that before the claimant is entitled to any refund he is required to establish to the satisfaction of the Commissioner in accordance with the prescribed regulations, or to the satisfaction of the Board, that he has borne the burden of the tax and has not been relieved thereof nor reimbursed therefor, nor shifted such burden directly or indirectly in the manner set out in Sec. 902 (a, b). As a further prerequisite to the allowance of the claim, Sec. 903 requires that the claim should be filed “in accordance with the regulations prescribed by the Commissioner with the approval of the Secretary. All evidence relied upon in support of such claim shall be clearly set forth under oath.” Article 201 of applicable Treasury Regulation 96 provides that the claim for the refund of such tax shall be made on prescribed forms and be prepared in accordance with the instructions contained thereon and with the provisions of the regulations. It must be kept in mind that the Government has a right to determine for itself [United States v. Michel, 282 U.S. 656, 659, 51 S.Ct. 284, 75 L.Ed. 598; Dismuke v. United States, 297 U.S. 167, 171, 56 S.Ct. 400, 80 L.Ed. 561] by law and by proper" }, { "docid": "2949487", "title": "", "text": "clear that the finding of the Board of Tax Appeals relative to the appraised value of the stock for the purpose of the federal estate tax is a finding of its fair market value when acquired by appellant. Another contention of petitioner is that the Board of Tax Appeals in making its findings and conclusions proceeded on an erroneous theory of law, viz.: That the hoard was bound to approve the valuation of the commissioner unless the presumption in favor of its correctness was overcome by convincing proof by the petitioner. We shall not undertake to follow counsel for petitioner in their discussion as to the theoretical status of presumptions in the law of evidence. It will suffice to ascertain whether the rulings and action of the Board of Tax Appeals relative to the evidence in the instant case were in accord with well-established principles. Rule 30 of the Board of Tax Appeals reads as follows: “Burden of Proof.- — The burden of proof shall be upon the petitioner, except that in respect of any new matter of fact pleaded in his answer, it shall be upon the respondent.” This rule has been enforced by the board in numerous cases. Appeal of J. M. Lyon, 1 B. T. A. 378; Helen Pitts Parker v. Com’r of Internal Revenue, 14 B. T. A. 1185, 1197. And similar holdings have been made by the courts. Brown v. Com’r (C. C. A.) 22 F. (2d) 797; Avery v. Com’r (C. C. A.) 22 F. (2d) 6, 55 A. L. R. 1277; Bishoff v. Com’r (C. C. A.) 27 F. (2d) 91; Coon Auto Co. v. Com’r, 35 F.(2d) 504 (C. C. A. 8); Wickwire v. Reinecke, 275 U. S. 101, 48 S. Ct. 43, 72 L. Ed. 184; Reinecke v. Spalding, 280 U. S. 227, 50 S. Ct. 96, 74 L. Ed. 385. The presumption in favor of the commissioner’s finding may be overcome by evidence. Walter R. McCarthy, Ex’r, v. Com’r of Internal Revenue, 9 B. T. A. 525; United States v. Rindskopf, 105 U. S. 418, 26 L. Ed. 1131; Wickwire" }, { "docid": "3695119", "title": "", "text": "Appeals relied upon the ground that the corporation had a cash surplus which was capital within the meaning of the statute. Compare, also, Darcy v. Commissioner, 66 F.(2d) 581, 585 (C. C. A. 2d), where the court said: “The burden is upon the petitioners to show the correct amount of the tax in order to show that the commissioner’s determination was wrong. * * * In a situation like this, that requires proof that the amount of the deficiency is erroneous, for it is that fact, and not the method of computation, which controls.” The petitioner cites a number of eases holding that where new matter is pleaded by the Commissioner the burden of proof, in respect of such matter, shall be upon him. This is the rule of practice in the Board of Tax Appeals. Crider Brothers v. Commissioner, 10 B. T. A. 338, 350; Schilling Grain Co. v. Commissioner, 8 B. T. A. 1048, 1057; Evangeline Gravel Co. v. Commissioner, 13 B. T. A. 101, 104; Falek v. Commissioner, 26 B. T. A. 1359. But these eases clearly demonstrate that the new matter with respect to which the burden rests upon the commissioner is new matter pleaded to support an additional liability, rather than an additional reason for the liability previously in question. In the present ease, no such new matter was pleaded, nor did the Commissioner admit in his answer any of the elements relied upon in the Board of Tax Appeals. The petitioner could not have been surprised by the argument since the statute obviously indicated the necessary elements of his ease. Thus the question reverts to the existence of evidence upon which the decision of the Board of Tax Appeals may rest. Or, as stated by Judge Learned Hand in Jewett & Co. v. Commissioner (C. C. A.) 61 F. (2d) 471, the question is whether the petitioner’s evidence was “so compelling” that the Board should- have found the facts in his favor. This petitioner’s evidence was largely his own deposition upon written interrogatories, in which he stated that the sums were paid to him" }, { "docid": "16077155", "title": "", "text": "proving him guilty of fraud. This was the real ground upon which it sustained the determination of the Commissioner. It said: “The petitioner has not met the burden of showing the respondent’s determination to be erroneous.” This is in accordance with its rule, and is the position upon which the Commissioner stands in his brief. ' While the Board may prescribe rulés of practice, it may not prescribe rules of evidence, and the burden of proof is a rule of evidence and not a rule of practice or procedure. Young v. Lowry (C. C. A.) 192 F. 825; Central Vermont Railway Co. v. White, 238 U. S. 507, 512, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252. Hence the general rule of evidence prevails that he who alleges fraud must prove it. The above rule of the Board is inapplicable to fraud and, as applied to it, was made without authority and is contrary to law. The Revenue Act of 1928, § 601 (26 USCA § 1219), specifically corrected this practice by amending section 907 of the Revenue Act of 1924 to read as follows: “In any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, where no healing has been held before the enactment ”of the Revenue Act of 1928, the burden of proof in respect of such issue shall be upon the Commissioner.” This is simply declaratory of what the law was. The burden was, therefore, on the Commissioner to bear the burden of proving his charge of fraud that the sale was not bona fide. This he failed to do, and the order of redetermination of the Board is reversed, the determination of the Commissioner set aside, and the income tax return of the petitioner approved." }, { "docid": "13442869", "title": "", "text": "upon the Commissioner by the Board of Tax Appeals in accordance with its rules cannot, we think, be considered as a compliance with the statutory requirements as to waiver. Second, the construction of the statute contended for by petitioner would impose upon the Commissioner the burden of making assessments and collections in piecemeal. Wo do not think the statute contemplates such a procedure. The tax which is imposed by the statute is for the year involved, and is treated as a unit. The deficiency referred to in the notice by the Commissioner and in the petition for redeter-minafcion by the Board of Tax Appeals is treated as a unit in the provisions of the statute. In Sooy v. Commissioner (C. C. A.) 40 F.(2d) 634, 635, a similar case to the one at bar, the court in its opinion said: “Moreover, the view for which appellant contends not only has no express statutory sanction hut in practice would impose upon the Commissioner the burden of mailing assessments and collections in piecemeal and would result in additional expense and intolerable confusion. In computing income taxes a statutory rate must be selected appropriate to the total amount of taxable income considered as a single unit, and, until there is a determination of such income, in many eases, at least, no computation can be intelligently or safely made.” See, also, Pabst v. Lucas, 59 App. D. C. 154, 36 P. (2d) 614; Atlas Plaster & Fuel Co. v. Commissioner (C. C. A.) 55 F.(2d) 802. Our conclusion is that the decision of'the Board pf Tax Appeals and its order of re-determination were correct as to.both of the questions involved. The decision and order are affirmed. As to Question I. Revenue Act of 1926. “Sec. 2. * * * (b) The terms ‘includes’ and ‘including’ when used in a definition contained in this title shall not . be déemed to exclude other things other- . wise within the meaning of the term defined.” (26 USCA § 1262). “Sec. 208. (a) Upon the sale or exchange of property the entire amount of the gain or" }, { "docid": "13977342", "title": "", "text": "FOSTER, Circuit Judge. The Commissioner of Internal Revenue determined deficiencies in income taxes of petitioner for the fiscal years ending April 30, 1926, to April 30, 1929, both inclusive, amounting to $34,894.54. Deeming the returns were fraudulent, he also assessed a penalty of 50 per cent, in addition. Petitioner appealed to the Board of Tax Appeals. The Commissioner answered, affirmatively pleading fraud in the preparation and filing of the returns. The Board found that the Commissioner had not sustained the burden of proving fraud and decided against him on that ground. But the Board also held that petitioner had failed to overcome the presumption in favor of the correctness of the Commissioner’s determination of the deficiencies and affirmed the ruling of the Commissioner in that respect. It appears from the record that when the case was heard before the Board counsel for petitioner insisted that the Commissioner had the burden of proof and should take the lead in putting in his evidence. The member presiding ruled that petitioner had the burden of proof to show there was no deficiency. Counsel for petitioner then moved that the Commissioner be required to proceed with his proof upon the fraud question because petitioner’s evidence was in the nature of rebuttal. The motion was overruled. An exception was taken to the ruling, but that is not assigned as error. Petitioner introduced three documents, which are conceded to be immaterial and which we are unable to locate in the record, and rested. The Commissioner then offered photostatic copies of petitioner’s income tax returns and the evidence of one witness and rested. Petitioner offered no further evidence.' This was all that was before the Board. Petitioner contends that having assessed penalties for the filing of fraudulent returns, the burden was on the Commissioner not only to show fraud, but also to show that the returns as made were otherwise not correct, on the ground that the deficiencies determined were based on disallowances of certain items upon which the charge of fraud was also predicated. The case before the Board presented two questions for decision; one, whether" }, { "docid": "8078543", "title": "", "text": "to establish that it is operated exclusively for religious or charitable purposes; (4) petitioner serves the private interests of its founder; and (5) assuming arguendo petitioner is entitled to tax-exempt status, petitioner is a private foundation because it has failed to prove that it is a church within the meaning of sections 509(a)(1) and 170(b)(l)(A)(i). I. Burden of Proof Petitioner claims that under the rule of Weimerskirch v. Commissioner, 596 F.2d 358 (9th Cir. 1979), revg. 67 T.C. 672 (1977), which it asserts we must follow according to our rule in Golsen v. Commissioner, 54 T.C. 742 (1970), affd. on other issues 445 F.2d 985 (10th Cir. 1971), “A deficiency determination which is not supported by the proper foundation of substantive evidence is clearly arbitrary and erroneous.” 596 F.2d at 362. Petitioner proceeds that since respondent has made no independent investigation of any facts nor produced any admissible evidence of any kind, his disallowance of exemption to petitioner is merely the result of speculation and conjecture; therefore, according to petitioner, the burden of proof shifts to respondent. Petitioner, however, misconstrues the applicability of Weimerskirch v. Commissioner, supra, Golsen v. Commissioner, supra, and the rules governing a proceeding under section 7428. In Weimerskirch, there was a dearth of evidence introduced at trial either to prove or disprove the taxpayer’s income from unreported sales of heroin; the Ninth Circuit refused to allow the Commissioner to win solely on the presumption of correctness which, under Rule 142(a), Tax Court Rules of Practice and Procedure, we attach to his deficiency determination. In the instant case, by contrast, we have the entire administrative record which contains facts, assumed to be true for the purpose of this proceeding, on which to base our decision. The rule in Golsen, therefore, would not apply since we need only “follow a Court of Appeals decision which is squarely in point where appeal from our decision lies to that Court of Appeals and to that court alone.” 54 T.C. at 757. Clearly, we are not faced with a procedural situation “squarely in point” with the Ninth Circuit’s decision in Weimerskirch." }, { "docid": "23549959", "title": "", "text": "wholly aside from his method of computation, the taxes determined by him and later re-determined by the Board, when reckoned on earnings which the evidence at the hearing showed were the very minima of what the petitioner had made, are right. And so we find that the earnings determined, though impossible of precise ascertainment, were at least the earnings made. We come to this judgment by a train of reasoning beginning with the postulate that the Commissioner’s finding was, in consonance with the settled rule in respect to assessments, prima facie correct. United States v. Rindskopf, 105 U. S. 418, 26 L. Ed. 1131; Brown v. Commissioner (C. C. A.) 22 F.(2d) 797; Rieck v. Heiner (C. C. A.) 25 F.(2d) 453. Next, in a suit to recover an amount paid as a tax, the taxpayer has the burden of proving as a fact that the tax is invalid. United States v. Anderson, 269 U. S. 422, 443, 46 S. Ct. 131, 70 L. Ed. 347; United States v. Mitchell, 271 U. S. 9, 46 S. Ct. 418, 70 L. Ed. 799. This proceeding before the Board of Tax Appeals, instituted to avoid payment of a tax, is in nature similar to and is of equal formality with a suit to recover a tax paid. Moreover, in a ease before the Board the burden of disproving a deficiency as determined by. the Commissioner is recognized to be upon the taxpayer, Avery v. Commissioner, supra; Brown v. Commissioner, supra, and is cast upon him by a rule which the Board has promulgated and has uniformly enforced (Rule 30). That the petitioner has not sustained that burden is shown by the highly complicated yet admirable analyses of the evidence in conjunction with the taxpayer’s income tax returns made by the attorneys for the opposing parties. Though this evidence is in sharp conflict we have, after much labor, come to the judgment that, aside from the Commissioner’s method of determining the taxpayer’s earnings and corresponding taxes. and aside from the admitted fact that from the returns and supplemental evidence no one can accurately" }, { "docid": "11977676", "title": "", "text": "to be conducted in accordance with such rules of practice, (other than rules of evidence) as the Board may prescribe, and are to be conducted with the rules of evidence applicable in the courts of equity of the District of Columbia. The Chairman is authorized to divide the Board into divisions (subsection (b) and the hearing may be held before a division (subsection (d). By subsection (e) the Board and its divisions are required to make written findings of fact and a decision in each case. The findings and decision of a division become the findings and decision of the Board unless within thirty days the Chairman orders such findings and decision reviewed by the Board. Subsection (g) provides for review by the Circuit Court of Appeals and the Court of Appeals for the District of Columbia for errors of law upon petition of the taxpayer or the Commissioner. Further review by the Supreme Court upon certiorari is also authorized.” “Section 649 creates certain presumptions intended to simplify the proof required under Section 644 to establish the extent to which the claimant has borne the burden of the tax sought to be recovered. Under subsection (a) a showing that the ‘average margin’ (as defined by the Act) per unit of commodity processed was lower during the tax period than it was during stated periods before and after the tax period creates a prima facie presumption that the claimant bore the burden of the tax,.while a showing that the average margin during the tax period was not lower is made prima facie proof that the claimant did not bear the burden. By subsection (e) either the claimant or the Commissioner is permitted to rebut the presumption created by subsection (a) by showing the extent to which the claimant shifted the burden to others. The section further indicates certain matters which may be proved to overcome the presumption.” “Section 652 provides that no Collector of Internal Revenue or Customs, or internal revenue or customs officer or employee, shall be in any way liable to any person for any act done by him" }, { "docid": "16077153", "title": "", "text": "& Heat Co., 242 Pa. 587, 590, 89 A. 674; Maguire v. Preferred Realty Co., 257 Pa. 48, 52,101 A. 100; In re Kayser (C. C. A.) 177 F. 383, 386. The determination of the Commissioner being presumptively correct, in appealing from the additional assessment, Mr. Budd was required to prove a sale, transfer of title, a valuable consideration, and the other positive elements upon which he relied. This he did, and this must stand unless the sale was a pretense and a fraud. That it was is in substance what the Commissioner charges. It is necessary for him to bear the burden of establishing this by clear proof, Bamberger v. Schoolfield, 160 U. S. 149, 16 S. Ct. 225, 40 L. Ed. 374; Lalone v. United States, 164 U. S. 255,17 S. Ct. 74, 41 L. Ed. 425, unless the well-established rule of law generally applicable is different in tax cases, and the Commissioner says it is. The Commissioner made no attempt to prove fraud, but relied upon Mr. Budd to negative the charge of fraud. But fraud cannot be inferred by the court or jury from acts, legal in themselves and consistent with an honest purpose. Foster v. McAlester et al. (C. C. A.) 114 F. 145,152. Section 907(a) of the Revenue Act of 1926 (44 Stat. 107), in force when this ease was heard, provides as follows: “The proceedings of the Board and its divisions shall be conducted in accordance with such rules of practice and procedure .(other than rules of evidence) as the Board may prescribe and in accordance with the rules of evidence applicable in courts of equity of the District of Columbia.” The Board of Tax Appeals prescribed the following rule of practice to be used before it: “The burden of proof shall be upon the petitioner, except that in respect of any new matter of fact pleaded in his answer, it shall be upon the respondent.” The Board accordingly held that the burden was on the petitioner to prove himself innocent of fraud and not upon the Commissioner to bear the burden of" }, { "docid": "11943877", "title": "", "text": "as it would have been had it been taken in the form of depositions. The parties have stipulated that the testimony so taken was both competent and material, and apparently went to the vital issues to be determined. It was taken in due course and without objection, and was taken at a very large expense to the petitioner. 26 USCA § 1219 (a) provides that proceedings before the Board shall be conducted in accordance with such rules of practice and procedure (other than rules of evidence) as the Board may prescribe, and “in accordance with the rules of evidence applicable in courts of equity of the District of Columbia.” Section 1061 of the Code of the District of Columbia 1924 (D. C. Code 1929, T. 9, § 6) provides that in equity cases, the testimony of the witnesses may be taken in the manner provided by the rules of the Supreme Court of the United States for practice in equity. Supreme Court Equity Rule 46 (28 USCA § 723) provides in part as follows: “The court shall pass upon the admissibility of all evidence offered as in actions at law. When evidence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the character of the evidence, the form in which it was offered, the objection made, the ruling, and the exception.” This new rule, it has been held, restores the practice as it existed prior to 1842. Presidio Mining Co. v. Overton (C. C. A. 9) 270 F. 388. This court had occasion to consider the practice in Unkle v. Wills (C. C. A. 8) 281 F. 29, 34, where it is, among other things, said: “It is equally well settled that, even if objections to evidence are sustained in equity cases, it is the duty of the court to have them answered and included in the record, so that, if the appellate court finds that the chancellor erred in his" }, { "docid": "16077154", "title": "", "text": "of fraud. But fraud cannot be inferred by the court or jury from acts, legal in themselves and consistent with an honest purpose. Foster v. McAlester et al. (C. C. A.) 114 F. 145,152. Section 907(a) of the Revenue Act of 1926 (44 Stat. 107), in force when this ease was heard, provides as follows: “The proceedings of the Board and its divisions shall be conducted in accordance with such rules of practice and procedure .(other than rules of evidence) as the Board may prescribe and in accordance with the rules of evidence applicable in courts of equity of the District of Columbia.” The Board of Tax Appeals prescribed the following rule of practice to be used before it: “The burden of proof shall be upon the petitioner, except that in respect of any new matter of fact pleaded in his answer, it shall be upon the respondent.” The Board accordingly held that the burden was on the petitioner to prove himself innocent of fraud and not upon the Commissioner to bear the burden of proving him guilty of fraud. This was the real ground upon which it sustained the determination of the Commissioner. It said: “The petitioner has not met the burden of showing the respondent’s determination to be erroneous.” This is in accordance with its rule, and is the position upon which the Commissioner stands in his brief. ' While the Board may prescribe rulés of practice, it may not prescribe rules of evidence, and the burden of proof is a rule of evidence and not a rule of practice or procedure. Young v. Lowry (C. C. A.) 192 F. 825; Central Vermont Railway Co. v. White, 238 U. S. 507, 512, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252. Hence the general rule of evidence prevails that he who alleges fraud must prove it. The above rule of the Board is inapplicable to fraud and, as applied to it, was made without authority and is contrary to law. The Revenue Act of 1928, § 601 (26 USCA § 1219), specifically corrected this practice" }, { "docid": "22613369", "title": "", "text": "in this case the burden on the taxpayer was not only to prove that the commissioner’s determination is erroneous but to show the correct amount of the tax. In substance he says that, because of the taxpayer’s failure to establish facts on which a fair apportionment may be made, the board’s redetermination at the commissioner’s erroneous figure was valid, and there being no error of law, should have been sustained by the court. And he maintains that, in the absence of error on the part of the board, the court was without power to remand for further hearing. He cites Revenue Act of 1926, § 274 (e), 44 Stat. 56: “ The Board shall have jurisdiction to redetermine the correct amount of the deficiency even if the amount so redetermined is greater than the amount of the deficiency, notice of which has been mailed to the taxpayer, and to determine whether any penalty, additional amount or addition to the tax should be assessed, if claim therefor is asserted by the Commissioner at or before the hearing or a rehearing.” The purpose of that provision is to define the jurisdiction granted to the board; it does not prescribe any rule of evidence or burden of proof. Plainly it does not support the commissioner’s contention that the taxpayer, even though he has shown the determination to be arbitrary and excessive, must nevertheless pay the added tax because he has not also shown that he owes nothing or the correct amount, if any, that legally may be laid upon him. He also cites Revenue Act of 1928, §§51 (a) and 54 (a). 45 Stat. 807, 808. Neither gives any support to his contention. The first requires the taxpayer to make under oath a return stating specifically the amount of his gross income and the amounts of deductions and credits allowed. The other requires the taxpayer to keep such records, render under oath such statements, make such returns, and comply with such rules and regulations as the commissioner may prescribe. These requirements give no support to the commissioner’s contention. They tend rather to suggest" }, { "docid": "13977343", "title": "", "text": "there was no deficiency. Counsel for petitioner then moved that the Commissioner be required to proceed with his proof upon the fraud question because petitioner’s evidence was in the nature of rebuttal. The motion was overruled. An exception was taken to the ruling, but that is not assigned as error. Petitioner introduced three documents, which are conceded to be immaterial and which we are unable to locate in the record, and rested. The Commissioner then offered photostatic copies of petitioner’s income tax returns and the evidence of one witness and rested. Petitioner offered no further evidence.' This was all that was before the Board. Petitioner contends that having assessed penalties for the filing of fraudulent returns, the burden was on the Commissioner not only to show fraud, but also to show that the returns as made were otherwise not correct, on the ground that the deficiencies determined were based on disallowances of certain items upon which the charge of fraud was also predicated. The case before the Board presented two questions for decision; one, whether the returns truly reflected the income of petitioner subject to taxation; and, two, whether they were also fraudulently made. It is elementary that a ruling of the Commissioner assessing income taxes is presumed to be correct and a taxpayer disputing the assessment has the burden of overcoming this presumption. This was true as to a finding of fraud by the Commissioner, prior to the adoption of the Revenue Act of 1924, § 907, continued in subsequent acts (26 U.S.C.A. § 612) which puts the burden of proving fraud upon the Commissioner. We are not aware of any reported case construing the statute but, considering the presumption, construction is not difficult. Before the adoption of the statute, in many cases, overcoming of the presumption of fraud was not a hardship. Necessarily, if the taxpayer was able to prove the correctness of his return, the charge of ‘fraud fell. On the other hand, if the taxpayer failed to adequately support his return, and it was erroneous through ignorance in keeping his records or mistake of law or" }, { "docid": "22613370", "title": "", "text": "hearing or a rehearing.” The purpose of that provision is to define the jurisdiction granted to the board; it does not prescribe any rule of evidence or burden of proof. Plainly it does not support the commissioner’s contention that the taxpayer, even though he has shown the determination to be arbitrary and excessive, must nevertheless pay the added tax because he has not also shown that he owes nothing or the correct amount, if any, that legally may be laid upon him. He also cites Revenue Act of 1928, §§51 (a) and 54 (a). 45 Stat. 807, 808. Neither gives any support to his contention. The first requires the taxpayer to make under oath a return stating specifically the amount of his gross income and the amounts of deductions and credits allowed. The other requires the taxpayer to keep such records, render under oath such statements, make such returns, and comply with such rules and regulations as the commissioner may prescribe. These requirements give no support to the commissioner’s contention. They tend rather to suggest that taxpayer’s returns are correct and may not arbitrarily be set at naught. He also cites Rule 30 adopted by the board: “ The burden of proof shall be upon the petitioner, except as otherwise provided by statute and except that in respect of any new matter pleaded in his answer, it shall be upon the respondent.” But there is nothing in it to suggest intention to require the taxpayer to prove not only that a deficiency assessment laid upon him was arbitrary and wrong but also to show the correct amount. Moreover, the board held the evidence not sufficient to show the apportionment erroneous and on that ground alone sustained' the assessment. Necessarily the board did not come to the question that is here presented as to burden of proof. The fact that the commissioner’s determination of a deficiency was arbitrarily made may reasonably be deemed sufficient to require the board to set it aside. Cf. Bruce & Human Drug Co., 1 B. T. A. 342. Acorn Refining Co., 2 B. T. A. 253." } ]

[ { "docid": "22362871", "title": "", "text": "see Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U. S. 310; Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282, certainly it should lead us not to upset a practice of the shipping industry sanctioned by the courts most concerned with it. And if inferences are to be drawn from existing legislation, it may be significant that Congress’ careful regulation of freedom to limit liability in the case of public carriers of passengers or cargo (46 U. S. C. §§ 183c, 190-192, 1300-1308) is, either expressly or by virtue of the judicial “gloss” placed upon these sections, inapplicable to the usual tug-tow relationship. This suggests that, in the view of Congress, there is no overriding public policy requiring similar limitations in the field of private towage. This Court has not, to be sure, in every instance awaited congressional action before imposing views of public policy upon contracting parties. But it has limited its interference in the field of transportation to relationships between common carriers and their customers, concededly not the relationship before us. We have held that the towage relationship is even less than one of marine bailment, Stevens v. The White City, 285 U. S. 195, as to which, under the rulings of the lower fed eral courts, public policy does not invalidate exculpatory clauses. Newport News Shipbuilding & Dry Dock Co. v. United States, 34 F. 2d 100 (C. A. 4th Cir.); Hall-Scott Motor Car Co. v. Universal Ins. Co., 122 F. 2d 531 (C. A. 9th Cir.); see International Mercantile Marine S. S. Co. v. W. & A. Fletcher Co., 296 F. 855, 860 (C. A. 2d Cir.); Restatement, Contracts, §§ 574, 575. The considerations which have governed this Court’s role as arbiter of the public interest in exculpatory contracts were recently enunciated by the unanimous Court in the Sun Oil case. They bear repetition: “So far as concerns the service to be rendered under the agreement, respondent was not a common carrier or bailee or bound to serve or liable as such. Towage does not involve bailment .... There is no foundation in" } ]

[ { "docid": "9684298", "title": "", "text": "Aetna’s claim if the Hercules-Escambia agreement was one for transportation, not towage. Bisso in Tow In the event the District Court were to conclude the whole arrangement between Escambia and Hercules was not intended as a transportation contract, but that a separate towage contract was contemplated, he should then hold that the attempted incorporation of COGSA is ineffective because of Bisso. Aetna urges that its claim for cargo damage against Detco is one of negligent tow-age and breach of WWLP, and that the incorporation of COGSA and its one-year limitation in the charter agreement is an exculpatory provision void under Bisso. Of course, to reach this point, Aetna first must succeed in establishing that the relationship under the charter agreement is one of tow-age, not carriage. Aetna’s obvious purpose in contending for a towage contract, rather than a contract of affreightment, is to seek shelter under the mantle of the Bisso doctrine. Since Bisso condemns exculpatory clauses that relieve a negligent tower of liability, Aetna urges that the incorporation of COGSA into the charter agreement allows the tower, Detco, to do indirectly that which it cannot do directly, that is to shield itself from negligence. The incorporation of COGSA does indeed affect the rights of the parties. The COG-SA incorporation not only limits the time in which suit may be brought, it also alters the substantive rights and duties of the parties. The general standard of negligence (or WWLP) applied to a tower is markedly reduced by COGSA which excuses a multitude of sins, including faults in navigation, etc. This Circuit has held that cross insurance clauses with waiver of subrogation do not run afoul of Bisso. See Twenty Grand Offshore, Inc. v. West India Carriers, Inc., 492 F.2d 679 (5th Cir.1974), cert. denied, 419 U.S. 836, 95 S.Ct. 63, 42 L.Ed.2d 63 (1974); Flour Western, Inc. v. G & H Offshore Towing Co., 447 F.2d 35 (5th Cir.1972); Hartford Fire Ins. Co. v. Port Everglades Towing Co., Ltd., 454 F.2d 276 (5th Cir.1972); A. Parks, The Law of Tug, Tow, and Pilotage 69-89 (2d ed. 1982); Note, Admiralty —" }, { "docid": "9949155", "title": "", "text": "191, likewise prohibits conditions in bills of lading: “ * * * whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo and to care for and properly deliver same, shall in any wise be lessened, weakened, or avoided.” The statute applies to a vessel transporting goods from a foreign country to the United States. Knott v. Botany Worsted Mills, 179 U.S. 69, 21 S.Ct. 30, 45 L.Ed. 90. The ship contends that these sections of the Harter Act are not applicable because, the ship having been wholly chartered for this voyage by Mitsubishi, was a private and not a common carrier. The Robin Gray, 2 Cir., 65 F.2d 376; The Westmoreland, 2 Cir., 86 F.2d 96; The Agwimoon, D.C., 24 F.2d 864, affirmed Atlantic Gulf & West Indies Steamship Lines v. Interocean Oil Co., 4 Cir., 31 F.2d 1006; The Pawnee, D.C., 205 F. 333; Sumner v. Caswell, D.C., 20 F. 249; The Wildenfels, 2 Cir., 161 F. 864; The C. R. Sheffer, 2 Cir., 249 F. 600, 602. And it has been frequently held that a private carrier by water may make its own contract for carriage including an exemption from liability for its own negligence, and will not be bound by the Plarter Act unless it is expressly incorporated in the charter agreement. The Fri, 2 Cir., 154 F. 333; The G. R. Crowe, 2 Cir., 294 F. 506; The Ft. Gaines, D.C.Md., 24 F.2d 849, 851, affirmed on appeal under .the name of Federal Forwarding Co. v. Lanasa, 4 Cir., 32 F.2d 1 54; Koppers Conn. Coke Co. v. James McWilliams Blue Line, 2 Cir., 89 F.2d 865; The Oakley C. Curtis, 2 Cir., 4 F.2d 979. This contention, however, seems untenable as I find on examination of the charter party that it provides — “It is also mutually agreed that this contract is subject to all the terms and provisions of, and all the exemptions from liability contained in an Act of Congress of the United States approved on the 13th day of February, 1893, entitled ‘An Act" }, { "docid": "9684299", "title": "", "text": "allows the tower, Detco, to do indirectly that which it cannot do directly, that is to shield itself from negligence. The incorporation of COGSA does indeed affect the rights of the parties. The COG-SA incorporation not only limits the time in which suit may be brought, it also alters the substantive rights and duties of the parties. The general standard of negligence (or WWLP) applied to a tower is markedly reduced by COGSA which excuses a multitude of sins, including faults in navigation, etc. This Circuit has held that cross insurance clauses with waiver of subrogation do not run afoul of Bisso. See Twenty Grand Offshore, Inc. v. West India Carriers, Inc., 492 F.2d 679 (5th Cir.1974), cert. denied, 419 U.S. 836, 95 S.Ct. 63, 42 L.Ed.2d 63 (1974); Flour Western, Inc. v. G & H Offshore Towing Co., 447 F.2d 35 (5th Cir.1972); Hartford Fire Ins. Co. v. Port Everglades Towing Co., Ltd., 454 F.2d 276 (5th Cir.1972); A. Parks, The Law of Tug, Tow, and Pilotage 69-89 (2d ed. 1982); Note, Admiralty — The Undermining of the Bisso Rule, 9 Mem.St.U.L.Rev. 223 (1979); Dixon & Canning, The Continuing Erosion of Bisso— Waiver of Subrogation and Benefit of Insurance Clauses, 44 Ins. Counsel J. 97 (1977). But except for this we are bound to, and do, apply Bisso to invalidate exculpatory devices. Bisso turns on the Court’s determination on remand whether the Escambia-Hereules relationship was an arrangement for transportation. It bears repeating that, if the contract is one for transportation, we have no difficulty finding Bisso inapplicable. Under a private contract of carriage, Escambia could, and indeed did, release the tug from liability. Paragraph 9 of the charter agreement makes clear that the owner and the tug are entitled to the benefits of COGSA. Nor are we persuaded by Aetna’s argument that the parties did not mean to incorporate all of COGSA under Paragraph 9. The section of COGSA restricting liability for negligence is § .1304 which was specifically incorporated through the use of the words “rights and immunities.” We reject as frivolous the contention that the one-year limitation" }, { "docid": "12368843", "title": "", "text": "Cargo, that the failure of the Tow to navigate in the center of the channel was an independent ground of negligence. Rather, it is that the farther the tow was from the center, the closer it was to the edge of the defined channel, the exact location of which was difficult, if not impossible, to locate on the surface of the waterway. The permissibility of this inference is cumulatively supported by ample evidence of other fault, particularly with respect to the failure to maintain a proper lookout considering the high deckload. Affirming, as we do, the finding of negligent towage, the alternate Harter Act error-in-navigation defense, based on identical facts between identical parties, involves the identical question disposed of in our former decision. The Tower urges that we reconsider. In this undertaking which perhaps reckons with a mixture of the law-of-the-case principle, Lincoln Nat’l Life Ins. Co. v. Roosth, 5 Cir., 1962, 306 F.2d 110 (en banc), and stare decisis, the Tower with a good deal of basis throws added doubt on the correctness of our still earlier decision in Mississippi Valley Barge Line Co. v. T. L. James & Co., 5 Cir., 1957, 244 F.2d 263, 1957 AMC 1647, cert. denied, 355 U.S. 871, 78 S.Ct. 121, 2 L.Ed.2d 76, on which The R. A. Turrentine was based. To the doubts generated by Chief Judge Tuttle’s special concurrence, 279 F.2d 811, 815, the Tower adds supposedly contrary results reached in these cases: Continental Grain Co. v. American Commercial Barge Line Co., 7 Cir., 1964, 332 F.2d 26, 1964 AMC 1830; Allied Chemical Corp. v. Gulf Atlantic Towing Corp., E.D.Va., 1964, 244 F.Supp. 2, 1965 AMC 776; Pure Oil Co. v. M/V CARIBBEAN, W.D.La., 1964, 235 F.Supp. 299. And to these we think the action of the Supreme Court in Southwestern Sugar & Molasses saps pretty generally whatever vitality remained in T. L. James so far as the status of carrier versus tower turned on independent ownership of the tug and of the barge being physically towed. In each case the barge was shipper-owned and the ICC tariffs of these" }, { "docid": "12368844", "title": "", "text": "our still earlier decision in Mississippi Valley Barge Line Co. v. T. L. James & Co., 5 Cir., 1957, 244 F.2d 263, 1957 AMC 1647, cert. denied, 355 U.S. 871, 78 S.Ct. 121, 2 L.Ed.2d 76, on which The R. A. Turrentine was based. To the doubts generated by Chief Judge Tuttle’s special concurrence, 279 F.2d 811, 815, the Tower adds supposedly contrary results reached in these cases: Continental Grain Co. v. American Commercial Barge Line Co., 7 Cir., 1964, 332 F.2d 26, 1964 AMC 1830; Allied Chemical Corp. v. Gulf Atlantic Towing Corp., E.D.Va., 1964, 244 F.Supp. 2, 1965 AMC 776; Pure Oil Co. v. M/V CARIBBEAN, W.D.La., 1964, 235 F.Supp. 299. And to these we think the action of the Supreme Court in Southwestern Sugar & Molasses saps pretty generally whatever vitality remained in T. L. James so far as the status of carrier versus tower turned on independent ownership of the tug and of the barge being physically towed. In each case the barge was shipper-owned and the ICC tariffs of these regulated certificated carriers treated the resulting cargo liabilities specially. In T. L. James we held, in effect, such exoneration to be void as a matter of law. In Southwestern Sugar & Molasses, the Supreme Court affirmed our decision that validity was a matter first to be determined by the ICC under the primary jurisdiction doctrine. But to recognize that the signal from T. L. James is weak does not carry the day. At the outset, this loose, informal, oral arrangement revealed by the facts of these two identical records does not compel a holding by the trier of fact, cf. F.R.Civ.P. 52(a), that the Tower undertook to accept and perform all of those obligations and responsibilities characterizing a carrier, i. e., one engaged in the transportation of cargo as distinguished from the more limited role of supplying towage. More important, even making the double assumption that the arrangement gave Tower the status of a carrier and that it was therefore an implied party to the bill of lading issued by Magco Towing Company is insufficient." }, { "docid": "9684311", "title": "", "text": "to perform this task or whether Escambia was contracting to charter the barge and to hire Detco to tow the barge. If Escambia was looking to Hercules to provide full facilities, including both barge and tug, the contract would be one for affreightment or transportation, not towage. See generally Sacramento Navigation Co. v. Salz, 1927 A.M.C. 397, 273 U.S. 326, 47 S.Ct. 368, 71 L.Ed. 663 (1927); Brown & Root, Inc. v. American Home Assurance Co., 353 F.2d 113, 117-18 (5th Cir.1965); Continental Grain Co. v. American Commercial Barge Line Co., 332 F.2d 26, 27 (7th Cir.1964); Mississippi Valley Barge Line Co. v. T.L. James & Co., 244 F.2d 263 (5th Cir.1957); Allied Chemical Corp. v. Gulf Atlantic Towing Corp., 244 F.Supp. 2 (E.D.Va.1964); Pure Oil Co. v. M/V CARIBBEAN, 235 F.Supp. 299 (W.D.La.1964). That ownership, indeed, operation or control of the essential physical facilities is not required to constitute the business of “transportation” is well established in the maritime law. The classic example is a ship under time or voyage charter to the charterer who then contracts with individual shippers and issues bills of lading as a carrier. The example only gets more extreme as the initial time/voyage charterer subcharters, to the first subcharterer and so on down the line. See analogous situations under the Motor Carrier Act, United States v. Rosenblum Truck Lines, 315 U.S. 50, 62 S.Ct. 445, 86 L.Ed. 671 (1941); Thomson v. United States, 321 U.S. 19, 64 S.Ct. 392, 395, 88 L.Ed. 513 (1944); Agricultural Transportation Association of Texas v. King, 349 F.2d 873, 880 -81 (5th Cir.1965). . For over half a century the Supreme Court has declared the standard between tug and tow to be due care. In Stevens v. The White City, 285 U.S. 195, 201 (1932), 52 S.Ct. 347, 349, 76 L.Ed. 699, a case that readily qualifies as seminal, the Court declared: It has long been settled that suit by the owner of a tow against her tug to recover for an injury to the tow caused by negligence on the part of the tug is a suit ex" }, { "docid": "14258728", "title": "", "text": "Georgetown], its agents, servants and employees will not be liable for any loss or damage to said property under any circumstances including[ ] but not limited to fire, theft, vandalism, water damage and any negligent acts or omissions by Georgetown] and its employees.... Given this language, Georgetown contends, the claimants knew that they were leasing their berths at their own risk and agreed not to hold the marina liable for any damage which their vessels might incur while moored there. i. The exculpatory clause does not contravene public policy. Citing Bisso v. Inland Waterways Corp., Wechsler argues this exculpatory clause should be voided on public policy grounds in order to “discourage negligence by making wrongdoers pay damages” while, at the same time, “protecting] those in need of goods and services from overreaching by those who have the power to drive hard bargains.” 349 U.S. 85, 90-91, 75 S.Ct. 629, 99 L.Ed. 911 (1955). Wechsler, however, reads Bisso far too broadly. In that case, the Supreme Court refused to recognize an exculpatory clause in a contract for maritime towing services because the case law “strongly point[ed] to the existence of a judicial rule, based on public policy, invalidating contracts [which] releasfe] lowers from all liability for their negligence.” Id. at 90, 75 S.Ct. 629 (emphasis added). As the Bisso Court explained, “[t]his rule is merely a particular application to the towage business of a general rule long used by courts and legislatures to prevent enforcement of release-from-negligence contracts in many relationships....” Id. at 90-91, 75 S.Ct. 629 (emphasis added). Given this language, Bisso has been interpreted as applying only to those situations involving a contract for maritime towing services. See Royal Ins. Co. of Am. v. Southwest Marine, 194 F.3d 1009, 1014 & n. 5 (9th Cir.1999) (“[T]he Ninth Circuit has weighed the policy considerations and concluded that, except in towing contracts, exculpatory clauses are enforceable even when they completely absolve parties from liability for negligence....”) (citing Arcwel Marine, Inc. v. Southwest Marine, Inc., 816 F.2d 468, 470 (9th Cir.1987); M/V American Queen v. San Diego Marine Const. Corp., 708 F.2d" }, { "docid": "9684310", "title": "", "text": "condition being created in loading the com in such a manner as to prevent proper operation of the ship’s ventilation system, to which conduct the master of the vessel, as agent for Grace, failed to object. Id. . The panel of this Court did not pass on the basis asserted for the District Court first order since “it was later rejected” and “we find the substituted ground [third-party beneficiary] to be correct.” Hercules, Inc., 629 F.2d at 421 n. 5. . Although a contract of affreightment usually involves common ownership of the tug and barge, or bare-boat charter to the same person, see A. Parks, The Law of Tug, Tow, and Pilotage 43 (2d ed. 1982), we do not view ownership as conclusive, especially in this case where Hercules and Detco had previously entered a long-term contract which was amended prior to the Hercules/Escambia contract. The focus of inquiry should be on the intention of the parties and whether Escambia was contracting for Hercules to provide transportation of the poles in the manner Hercules chose to perform this task or whether Escambia was contracting to charter the barge and to hire Detco to tow the barge. If Escambia was looking to Hercules to provide full facilities, including both barge and tug, the contract would be one for affreightment or transportation, not towage. See generally Sacramento Navigation Co. v. Salz, 1927 A.M.C. 397, 273 U.S. 326, 47 S.Ct. 368, 71 L.Ed. 663 (1927); Brown & Root, Inc. v. American Home Assurance Co., 353 F.2d 113, 117-18 (5th Cir.1965); Continental Grain Co. v. American Commercial Barge Line Co., 332 F.2d 26, 27 (7th Cir.1964); Mississippi Valley Barge Line Co. v. T.L. James & Co., 244 F.2d 263 (5th Cir.1957); Allied Chemical Corp. v. Gulf Atlantic Towing Corp., 244 F.Supp. 2 (E.D.Va.1964); Pure Oil Co. v. M/V CARIBBEAN, 235 F.Supp. 299 (W.D.La.1964). That ownership, indeed, operation or control of the essential physical facilities is not required to constitute the business of “transportation” is well established in the maritime law. The classic example is a ship under time or voyage charter to the charterer" }, { "docid": "8372473", "title": "", "text": "13 embraces the MICHAEL. Nor does the clause contravene public policy. Although section 1 of the Harter Act, 46 U.S.C. § 190, forbids stipulations against negligence by carriers, the Act applies only to contracts of common carriage unless it is specifically incorporated into the agreement for private affreightment. E. g., Commercial Transport Corp. v. Martin Oil Service, Inc., 374 F.2d 813, 818 (7th Cir. 1967); Brown & Root, Inc. v. American Home Assurance Co., 353 F.2d 113, 118 (5th Cir. 1965), cert. denied, 384 U.S. 943, 86 S.Ct. 1465, 16 L.Ed.2d 541 (1966); Koppers Conn. Coke Co. v. James McWilliams Blue Line, Inc., 89 F.2d 865, 866 (2d Cir.), cert. denied, 302 U.S. 706, 58 S.Ct. 25, 82 L.Ed. 545 (1937). The district court found, and the parties do not suggest otherwise, that the cargo was shipped under a contract of private carriage. Section 1 of the Harter Act was not incorporated into the transportation agreement. Allied and Kerr-McGee, therefore, were free to make whatever contractual allocation of risk they desired. See The Monarch of Nassau, 155 F.2d 48 (5th Cir. 1946); The Elizabeth Edwards, 27 F.2d 747 (2d Cir. 1928). Kerr-McGee’s reliance on Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), does not require a contrary result. Mr. Justice Black was careful to point out that the decision was based on the particular nature of the tug-tow relationship, and specifically stated that the considerations which invalidated exculpatory clauses in towage contracts did not necessarily command a similar result in other maritime contracts. 349 U.S. at 91, 93, 75 S.Ct. 629. Both before and after Bisso, it has been held that exculpatory clauses in private contracts of affreightment are not contrary to public policy. E. g., Texas Co. v. Lea River Lines, Inc., 206 F.2d 55 (3rd Cir. 1953); Allied Chem. Corp. v. Gulf Atlantic Towing Corp., 244 F. Supp. 2 (E.D.Va.1964). The judgment of the district court is reversed." }, { "docid": "22916324", "title": "", "text": "cert. denied 393 U.S. 828, 89 S.Ct. 92, 21 L.Ed.2d 99 (1968); and South, Inc. v. Moran Towing & Transportation Co. (The Vega), 360 F.2d 1002 (2 Cir. 1966), as standing for this proposition, but its reliance on them for the purpose was misplaced. Both are distinguishable from the present case. The Perama was carrying a cargo in foreign trade and came under the provisions of COGSA which were applied in the decision. The present case concerns private carriage between domestic ports to which neither COGSA or the Harter Act applies. The Vega was private carriage between domestic ports but it concerned a tow, the owner of which was suing the tug and its owner for loss of part of the tow — one of three ferryboats. The burden of proving the seaworthiness of the ferryboat was on the plaintiff-claimant. Under those circumstances his failure to prove seaworthiness resulted in the assumption that it must have been unseaworthy. . The Death on the High Seas Act, 46 U.S.C. § 761 et seq., in no way changes the burden of proof on tort claims. . Because of the decision on MTL’s liability in regard to the cargo, there is no need to decide whether or not F.I.C. waived the right of subrogation in its contract with TGS. . Metropolitan Coal Co. v. Howard, 155 F.2d 780, 782 (2 Cir. 1946), is inapposite here because the charter party in that case specifically incorporated the provisions of the Harter Act, and its burden of proof rules. Unfortunately, the case has sometimes been misread to apply burden of proof rules separate from those of the Harter Act, see, e. g., Hampton Roads Carriers, Inc. v. Allied Chemical Corp., 329 F.2d 387, 391 (4 Cir.), cert. denied, 379 U.S. 839, 85 S.Ct. 78, 13 L.Ed.2d 46 (1964). . The pertinent portion of the Bill of Lading reads: “This shipment is carried under and pursuant to the terms of the Tanker Voyage Charter Party dated as of April 8, 1960 at Jersey City, New Jersey, between Marine Transport Lines, Inc. and Texas Gulf Sulphur Company, as" }, { "docid": "8372472", "title": "", "text": "court held that the barge was not exculpated by clause 13 because its owner was not a party to the agreement. We believe clause 13 should not be given such a narrow construction. The clause specifically exculpates Allied Container and its vessels. It also clearly exculpates Allied Towing as an affiliated company. The record does not disclose that Kerr-McGee bargained for the use of any particular barge. It appears to have been content to load its cargo on any barge that Allied Towing tendered. Surely under these circumstances, it would be unduly technical and inconsistent to hold that while the parties agreed to exculpate a vessel actually owned by Allied Container, they intended not to exculpate a vessel furnished by an affiliated company under a demise charter. Nothing in the agreement or in the evidence suggests that the parties intended to make this fine distinction when they used the words, “its vessels,” instead of the words, “their vessels,” and no practical or economic justification for the distinction has been shown. We conclude, therefore, that clause 13 embraces the MICHAEL. Nor does the clause contravene public policy. Although section 1 of the Harter Act, 46 U.S.C. § 190, forbids stipulations against negligence by carriers, the Act applies only to contracts of common carriage unless it is specifically incorporated into the agreement for private affreightment. E. g., Commercial Transport Corp. v. Martin Oil Service, Inc., 374 F.2d 813, 818 (7th Cir. 1967); Brown & Root, Inc. v. American Home Assurance Co., 353 F.2d 113, 118 (5th Cir. 1965), cert. denied, 384 U.S. 943, 86 S.Ct. 1465, 16 L.Ed.2d 541 (1966); Koppers Conn. Coke Co. v. James McWilliams Blue Line, Inc., 89 F.2d 865, 866 (2d Cir.), cert. denied, 302 U.S. 706, 58 S.Ct. 25, 82 L.Ed. 545 (1937). The district court found, and the parties do not suggest otherwise, that the cargo was shipped under a contract of private carriage. Section 1 of the Harter Act was not incorporated into the transportation agreement. Allied and Kerr-McGee, therefore, were free to make whatever contractual allocation of risk they desired. See The Monarch of" }, { "docid": "22291720", "title": "", "text": "bailee for hire, only for the negligent loss or injury of cargo, see Commercial Molasses Corp. v. New York Tank Barge Corp., supra, 314 U.S. at 108-109, 62 S.Ct. 156, and cases cited therein; Sumner v. Cas- well, 20 F. 249, 261 (S.D.N.Y.1884), and this is subject to any agreements made by the parties, see, e. g., The Fri, 154 F. 333 (2 Cir. 1907), cert. denied, 210 U.S. 431, 28 S.Ct. 761, 52 L.Ed. 1135 (1908); The Elizabeth Edwards, 27 F.2d 747 (2 Cir. 1928); Koppers Connecticut Coke Co. v. James McWilliams Blue Line, Inc., 89 F.2d 865, 866 (2 Cir.), cert. denied, 302 U.S. 706, 58 S.Ct. 25, 82 L.Ed. 545 (1937); Knauth, The American Law of Ocean Bills of Lading 177-78 (4th ed. 1953). With the introduction of bills of lading as documents of title, public carriers increasingly used these as a means of contractually expanding upon the narrow set of common law “exceptions” to their other wise absolute liability. See Gilmore & Black, supra, § 3-22, at 119-20. Ultimately, this process threatened to turn the general maritime law on its head, with English courts and some state courts — though not the courts of the United States — honoring even bill of lading provisions excepting public carriers from liability for loss due to their own negligence and that of their employees, see Knott v. Botany Worsted Mills, 179 U.S. 69, 71, 21 S.Ct. 30, 45 L.Ed. 90 (1900), Gilmore & Black, supra, § 3-22, at 121-22. It was in response to these developments, see The Delaware, 161 U.S. 459, 471-473, 16 S.Ct. 516, 40 L.Ed. 771 (1896), that the Harter Act was enacted in 1893 to protect those shipping cargo “from or between ports of the United States and foreign ports” against insertion “in any bill of lading or shipping document” of any provisions either relieving the vessel or its owners “from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery” of the cargo, § 1, 46 U.S.C. § 190, or lessening or abrogating their" }, { "docid": "22291719", "title": "", "text": "The mere addition of one or even two or three other large shipments would be an insufficient predicate for a determination of common carriage — if that were the decisive factor in resolving the applicability of COGSA. The private-public carriage distinction was introduced into the area of liability for loss of cargo when this was governed by non-statutory maritime law. At one time, the public carrier of goods by sea was “absolutely responsible for their safe arrival, unless loss or damage was caused by the Act of God or of the public enemy, or the inherent vice of the goods or the fault of the shipper — and (even where the loss was caused by one of these) the carrier was not negligent or otherwise at fault.” Gilmore & Black, The Law of Admiralty § 3-22, at 119 (1957) (footnote omitted). See also Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U.S. 397, 437, 9 S.Ct. 469, 32 L.Ed. 788 (1889). In contrast, the private carrier has traditionally been liable, as a bailee for hire, only for the negligent loss or injury of cargo, see Commercial Molasses Corp. v. New York Tank Barge Corp., supra, 314 U.S. at 108-109, 62 S.Ct. 156, and cases cited therein; Sumner v. Cas- well, 20 F. 249, 261 (S.D.N.Y.1884), and this is subject to any agreements made by the parties, see, e. g., The Fri, 154 F. 333 (2 Cir. 1907), cert. denied, 210 U.S. 431, 28 S.Ct. 761, 52 L.Ed. 1135 (1908); The Elizabeth Edwards, 27 F.2d 747 (2 Cir. 1928); Koppers Connecticut Coke Co. v. James McWilliams Blue Line, Inc., 89 F.2d 865, 866 (2 Cir.), cert. denied, 302 U.S. 706, 58 S.Ct. 25, 82 L.Ed. 545 (1937); Knauth, The American Law of Ocean Bills of Lading 177-78 (4th ed. 1953). With the introduction of bills of lading as documents of title, public carriers increasingly used these as a means of contractually expanding upon the narrow set of common law “exceptions” to their other wise absolute liability. See Gilmore & Black, supra, § 3-22, at 119-20. Ultimately, this process" }, { "docid": "7620867", "title": "", "text": "prevent insurance arrangements” such as the one between ITS and Zim. 616 F.2d at 428. Rig Hammers contends that Price is distinguishable in that it involved an action against an insurer and because Tokio had on a previous occasion accepted the defense of a longshoreman’s suit under the policy’s coinsured endorsement (thus raising a possible estoppel issue). Despite these factual variances, we agree with the court’s conclusion that an agreement as to which party should bear the burden of procuring insurance is not an illegal contract of indemnity under section 905(b). The court below also invalidated the additional insured provision of the Odeco Master Service Contract based on the policy considerations enunciated by the Supreme Court in Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). The district court reasoned that the additional assured clause was a means by which the vessel could “contract against her own fault.” See Voisin, 557 F.Supp. at 723. In Bisso the Supreme Court invalidated a towage contract providing that “the towing movement should be at the ‘sole risk’ ” of the barge being towed. 349 U.S. at 86, 75 S.Ct. at 630, 99 L.Ed. at 915. The Court stated that historically, the two main reasons for invalidating exculpatory clauses had been “(1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.” 349 U.S. at 91, 75 S.Ct. at 632-33, 99 L.Ed. at 918 (footnotes omitted). These reasons justified invalidating exculpatory clauses in towing contracts given the nature of the industry and the vessel owner’s need to operate “free of monopolistic compulsions.” Id. The district court’s reliance on Bisso as support for its invalidation of the Odeco Master Service Contract is unsound because it is based on the erroneous assumption that an additional assured clause is by definition exculpatory. In Twenty Grand Offshore, Inc. v. West India Carriers, Inc., 492 F.2d 679 (5th Cir.), cert. denied, 419 U.S. 836, 95 S.Ct. 63, 42 L.Ed.2d 63 (1974) (footnote" }, { "docid": "22916315", "title": "", "text": "v. Bethlehem Bank, 314 U.S. 314, 317, 62 S.Ct. 226, 86 L.Ed. 241 (1941). Because no cause for the loss of the Queen has been found, the legal burden of proof rule determines the cargo issue, as it did with the Death Claimants. That rule for the private carriage of goods is explicated in Commercial Molasses Corp. v. New York Tank Barge Corp., supra, which applies here unless a statute or an agreement between the parties changed the normal burden. Two statutes attempt, in various ways, to regulate the duties and liabilities of certain shippers and carriers, the Harter Act, 46 U.S.C. § 190 et seq., and the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq.; however, F.I.C. wisely makes no serious contention that either applies here of its own force. It has long been held that the Harter Act does not apply to private carriage, in which the Queen was engaged. Koppers Connecticut Coke Co. v. James McWilliams Blue Line, Inc., 89 F.2d 865, 866 (2 Cir.), cert. denied, 302 U.S. 706, 58 S.Ct. 25, 82 L.Ed. 545 (1937); The Westmoreland, 86 F.2d 96, 97 (2 Cir. 1936); The Fri, 154 F. 333, 338 (2 Cir. 1907), cert. denied, 210 U.S. 431, 28 S.Ct. 761, 52 L.Ed. 1135 (1908); The Monarch of Nassau, 155 F.2d 48 (5 Cir. 1946), and COGSA, which is concerned with bills of lading rather than charter parties, comes into play only in foreign commerce, in which, at the,time of her loss, the Queen was not engaged, 46 U.S.C. § 1300; see also, Gilmore and Black, supra, § 3-25, at 126. F.I.C. does argue, however, that TGS and MTL agreed to make COGSA, and its burden of proof rules, applicable to this private carriage, but, while they certainly could have made such an agreement, it is clear that they did not. F.I.C. first contends that the charter party specifically incorporated COGSA in |[ 1, H 6, ff 23 and ¶ 28. These first three paragraphs, however, make no mention of COGSA whatsoever, but simply use the phrase that the owner “shall" }, { "docid": "7620868", "title": "", "text": "be at the ‘sole risk’ ” of the barge being towed. 349 U.S. at 86, 75 S.Ct. at 630, 99 L.Ed. at 915. The Court stated that historically, the two main reasons for invalidating exculpatory clauses had been “(1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.” 349 U.S. at 91, 75 S.Ct. at 632-33, 99 L.Ed. at 918 (footnotes omitted). These reasons justified invalidating exculpatory clauses in towing contracts given the nature of the industry and the vessel owner’s need to operate “free of monopolistic compulsions.” Id. The district court’s reliance on Bisso as support for its invalidation of the Odeco Master Service Contract is unsound because it is based on the erroneous assumption that an additional assured clause is by definition exculpatory. In Twenty Grand Offshore, Inc. v. West India Carriers, Inc., 492 F.2d 679 (5th Cir.), cert. denied, 419 U.S. 836, 95 S.Ct. 63, 42 L.Ed.2d 63 (1974) (footnote omitted), we rejected the contention that “compulsory insurance clauses are exculpatory per se in the context of Bisso.” See id. at 683. The purpose of insurance procurement provisions “may well be merely to allocate initially the bur den of procuring insurance.” Price, 616 F.2d at 429. Moreover, there is no evidence indicating that the terms of the Master Service Contract were the product of oppressive or overreaching conduct on Ode-co’s part. In conclusion, we hold that Rig Hammers breached the Odeco Master Service Contract by failing to add Odeco as an additional assured in the unqualified manner directed by paragraph 8(f) of the contract. Consequently, Odeco was forced to pay money to Voisin and Gray & Company, Inc., that it would not have owed in the absence of Rig Hammers’ breach. Additionally, Odeco was forced to incur legal fees as a result of Rig Hammers’ breach of the Master Service Contract. The question of attorney’s fees was never reached by the district court. On remand, the court should rule on the availability, if any, and" }, { "docid": "3190684", "title": "", "text": "cited invalidating an exculpatory clause in a private affreightment contract. On the contrary, the Third Circuit has declined to extend to contracts of affreightment the rule invalidating a tower’s escape clause. In Texas Company v. Lea River Lines, 206 F.2d 55, 57 (3rd Cir. 1953), the Court said: “ -* * •*, Libellant here states as the rule of the Wash Gray case that a tower cannot, by contract that towage is to be at the risk of the tow, relieve itself from liability for damage to the tow caused by its negligence in towing. But assuming this is a correct statement of legal principle, it does not cover this case. It applies to the determination of rights and duties between tug and tow where these units of a flotilla represent separate interests. It has nothing to do with the responsibility of a private carrier to a shipper where the carrier alone controls the entire means of transportation, whether a single vessel or tug and tow.” In Bisso v. Inland Waterways Corporation, 349 U.S. 85, 91, 75 S.Ct. 629, 632 (1955), Mr. Justice Black explained the purpose of the rule which invalidates contracts releasing towers from all liability for their negligence: “ * * *. The two main reasons for the creation and application of the rule have been (1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains. These two reasons are no less applicable today than when The Syracuse [12 Wall. 167, 20 L.Ed. 382] and The Wash Gray [277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787] were decided. And both reasons apply with equal force whether tugs operate as common carriers or contract carriers. The dangers of modern machines make it all the more necessary that negligence be discouraged. And increased maritime traffic of today makes it not less but more important that vessels in American ports be able to obtain towage free of monopolistic compulsions.” Contracts which experienced businessmen have made should not" }, { "docid": "16695917", "title": "", "text": "Court found, because of the risks involved and because “increase maritime traffic of today makes it not less but more important that vessels in American ports be able to obtain towage free of monopolistic compulsions.” Id. The Supreme Court distinguished pilotage contracts, in which it had previously found exculpatory clauses to be valid, see Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932), in part because pilots, unlike towage employees, operate with a high degree of independence from the towing company. The Supreme Court thus reasoned, “[i]t is one thing to permit a company to exempt itself from liability for the negligence of a licensed pilot navigating another company’s vessel on that vessel’s own power.... It is quite a different thing, however, to permit a towing company to exempt itself by contract from all liability for its own employees’ negligent towage of a vessel.” Id. at 94, 75 S.Ct. 629. Circuits interpreting Bisso have underscored that Bisso’s holding -was grounded in a recognition of the unequal nature of the relationship between towing companies and ships seeldng access to a port, and the otherwise inadequate incentives for towing companies to use reasonable care. Thus, while careful to examine the particularized facts of a defendant’s overreaching, the circuits generally agree that Bisso is limited to towage contracts. As the Eighth Circuit in Sander explained: The doctrine prohibiting a party from completely absolving itself from liability for its own negligence is limited to circumstances involving relationships similar to towage agreements, such as bailment, employment, or public service relationships. The Supreme Court has explained the circumstances justifying the limitation of exculpatory clauses in those situations as those involving a monopoly or unequal bargaining power. Where the peculiarities of those types of relationships do not justify application of the doctrine, we uphold the strong public policies of recognizing parties’ liberty to contract and enforcing contracts as written. 334 F.3d at 719. See also B.H. Morton v. Zidell Explorations, Inc., 695 F.2d 347, 351 (9th Cir.1982) (per curiam) (holding that an exculpatory clause in a marine repair contract" }, { "docid": "3190683", "title": "", "text": "in part, the shipping rates. Allied contends that provisions of the contract absolving GATCO from liability resulting from its own torts are contrary to public policy and invalid. Dixilyn Drilling Corporation v. Crescent Company, 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963) and Bisso v. Inland Waterways Corporation, 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955) invalidate the contractual exemption of a tugboat owner from liability to the barge for the tug’s negligence. In each of these cases the tug was towing the shipper’s barge. Allied and GATCO, however, do not occupy the same position as the parties in Bisso and Dixilyn. Here GATCO was towing its own barge. The agreement of October 1, 1957 was not a contract of towage and it can not be divided in such a manner as to make it a contract of towage. It was a contract of affreightment — the transportation of goods. See Sacramento Nav. Co. v. Salz, 273 U.S. 326, 328, 47 S.Ct. 368, 71 L.Ed. 663 (1927). No case has been cited invalidating an exculpatory clause in a private affreightment contract. On the contrary, the Third Circuit has declined to extend to contracts of affreightment the rule invalidating a tower’s escape clause. In Texas Company v. Lea River Lines, 206 F.2d 55, 57 (3rd Cir. 1953), the Court said: “ -* * •*, Libellant here states as the rule of the Wash Gray case that a tower cannot, by contract that towage is to be at the risk of the tow, relieve itself from liability for damage to the tow caused by its negligence in towing. But assuming this is a correct statement of legal principle, it does not cover this case. It applies to the determination of rights and duties between tug and tow where these units of a flotilla represent separate interests. It has nothing to do with the responsibility of a private carrier to a shipper where the carrier alone controls the entire means of transportation, whether a single vessel or tug and tow.” In Bisso v. Inland Waterways Corporation, 349 U.S. 85," }, { "docid": "14258729", "title": "", "text": "for maritime towing services because the case law “strongly point[ed] to the existence of a judicial rule, based on public policy, invalidating contracts [which] releasfe] lowers from all liability for their negligence.” Id. at 90, 75 S.Ct. 629 (emphasis added). As the Bisso Court explained, “[t]his rule is merely a particular application to the towage business of a general rule long used by courts and legislatures to prevent enforcement of release-from-negligence contracts in many relationships....” Id. at 90-91, 75 S.Ct. 629 (emphasis added). Given this language, Bisso has been interpreted as applying only to those situations involving a contract for maritime towing services. See Royal Ins. Co. of Am. v. Southwest Marine, 194 F.3d 1009, 1014 & n. 5 (9th Cir.1999) (“[T]he Ninth Circuit has weighed the policy considerations and concluded that, except in towing contracts, exculpatory clauses are enforceable even when they completely absolve parties from liability for negligence....”) (citing Arcwel Marine, Inc. v. Southwest Marine, Inc., 816 F.2d 468, 470 (9th Cir.1987); M/V American Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1488 (9th Cir.1983)); Morton v. Zidell Explorations, Inc., 695 F.2d 347, 350-51 (9th Cir.1982) (explaining that “Bisso merely reaffirmed the rule for towage contracts”); see also La Esperanza De P.R., Inc. v. Perez Y Cia. De Puerto Rico, Inc., 124 F.3d 10, 19 (1st Cir.1997) (“While exculpatory clauses- — commonly referred to as red letter clauses — were traditionally disfavored by courts sitting in admiralty, see ... Bis-so ..., such clauses are today routinely enforceable. Accordingly, courts today will enforce red letter clauses that are expressed clearly in contracts entered into freely by parties of equal bargaining power, provided that the clause not provide for a total absolution of liability.”); accord Edward Leasing Corp. v. Uhlig & Assocs., Inc., 785 F.2d 877, 888 (11th Cir.1986) (“[S]everal admiralty cases dealing with the limitation of liability clauses in boat repair contracts have distinguished Bisso and held that the parties to such repair contracts may validly stipulate that the repairer’s liability is to be limited, but the cases have not allowed for total absolution of liability.”) (cited" } ]

[ { "docid": "5527047", "title": "", "text": "Keith Yordy, discovered that Wood may also have been involved in an improper relationship with an ISCI officer, Cheryl Davis, and that Wood was using the prison chaplain, Les Petersen, as a go-between to communicate with Davis. According to Yordy, in 2006 he limited Wood’s chapel access in order to curtail his contacts with Petersen pending an investigation. In early 2007, the Deputy Warden of Operations at ISO, defendant Steve Nelson, directed one of the chaplains to further restrict Wood’s access to the chapel to two hours a week, to consist of private counseling. According to Nelson, this action was taken because Wood’s activities had created tension between chaplains and with other inmates who complained Wood was monopolizing the chapel. In addition to the chapel restrictions, Wood alleges there was a pattern of harassment conducted by another correctional officer, Mike Ludlow. As part of this alleged pattern, Ludlow falsely reported that he had seen Wood stash contraband prescription medication in a windowsill. The charge against Wood was later dismissed on appeal. Wood filed this action in 2007 under RLUIPA against defendants Yordy and Nelson claiming damages from them in their individual capacities, and under § 1983 against Ludlow, as well as Yordy and Nelson, for First Amendment retaliation. The district court granted summary judgment on all of the claims, and Wood appeals. DISCUSSION RLUIPA, in relevant part, prohibits any “government” from burdening the religious exercise of a person residing in a correctional institution. 42 U.S.C. § 2000cc-l. RLUIPA was passed in the wake of the Supreme Court’s decision in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), limiting congressional power under the Fourteenth Amendment to restrict governmental interference with the exercise of religion. RLUIPA was then enacted pursuant to Congress’s spending and commerce powers. Sossamon v. Texas, — U.S. -, 131 S.Ct. 1651, 1656, 179 L.Ed.2d 700 (2011). RLUIPA affects only prisons and land use. With respect to prisons, RLUIPA’s reach is limited to prohibiting a “government” from burdening religious exercise in correctional institutions. 42 U.S.C. § 2000cc-l. The Act goes on to" } ]

[ { "docid": "23516490", "title": "", "text": "favor of Appellees on all of Jones’s claims. Jones appeals. II. We review the district court’s grant of summary judgment de novo. Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) (per curiam). “Summary judgment is only appropriate if the evidence, read in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law.” Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.2003) (citing Fed.R.Civ.P. 56(c)). “In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir.2000). A. Jones cannot obtain the monetary and injunctive relief he seeks under RLUIPA. The statute provides that a person asserting a violation of the statute “as a claim or defense in a judicial proceeding” may “obtain appropriate relief against a government.” 42 U.S.C. § 2000cc-2(a). In Sossamon v. Texas, the Supreme Court held that RLUIPA’s use of the phrase “appropriate relief’ is not an unequivocal expression of state consent to private suits for monetary damages and therefore does not operate to effect a waiver of the states’ sovereign immunity from such suits. 563 U.S. 277, 131 S.Ct. 1651, 1658-59, 179 L.Ed.2d 700 (2011); see also Oklevueha Native Am. Church of Haw. v. Holder, 676 F.3d 829, 840-41 (9th Cir.2012). Additionally, as we recognized in Wood v. Yordy, RLUIPA does not author-' ize suits for damages against state officials in their individual capacities because individual state officials are not recipients of federal funding and nothing in the statute suggests any congressional intent to hold them individually liable. 753 F.3d 899, 903-04 (9th Cir.2014). Jones’s RLUIPA claims for in-junctive relief are moot because Jones has been released from custody. Federal courts lack jurisdiction over claims that have been rendered" }, { "docid": "6561876", "title": "", "text": "(W.D.Va. Mar. 30, 2012). . We note at the forefront that Congress did not authorize damages claims against state officials under RLUIPA. See Sossamon v. Texas, - U.S. -, 131 S.Ct. 1651, 1658-59, 179 L.Ed.2d 700 (2011) (prohibiting damages claims against state officials in their official capacity); Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir.2009) (same for individual capacity). Therefore, the plaintiffs only potential remedies under RLUIPA are equitable. . As an initial matter, the defendants argue that, to the extent Wall has a justiciable claim for equitable relief, his amended complaint failed to request injunctive relief in particular. While it is true that his original complaint was more specific than the amended complaint, we are comfortable reading Wall’s prayer for any relief deemed “just, proper, and equitable” as encompassing a claim for injunctive relief. An appropriately liberal reading of the amended complaint indicates that Wall sought to prevent the defendants from wrongfully limiting his observance of Ramadan in the future through the issuance of an injunction. See De’lonta v. Johnson, 708 F.3d 520, 524 (4th Cir.2013) (\"[Courts must] afford liberal construction to the allegations in pro se complaints raising civil rights issues.”). We also note that the district court, while not explicitly ruling on the issue, referred to Wall’s claim as a request for \"in-junctive relief.” J.A. 142. . While we are confident in our authority to take judicial notice of the memorandum, we note that litigants do themselves no favor in relying on our willingness to do so. . Nor do we find any merit in the defendants’ contention that the voluntary cessation doctrine does not apply in this case because the change in policy was unrelated to the litigation. See ACLU of Mass. v. U.S. Conf. of Catholic Bishops, 705 F.3d 44, 55 (1st Cir.2013) C‘[T]he voluntary cessation doctrine does not apply when the voluntary cessation of the challenged activity occurs because of reasons unrelated to the litigation.”) (quoting M. Redish, Moore's Federal Practice, § 101.99[2]). It is undisputed that the September 13, 2011 memo was issued after the plaintiff's original complaint was filed; and, as" }, { "docid": "23516491", "title": "", "text": "of the statute “as a claim or defense in a judicial proceeding” may “obtain appropriate relief against a government.” 42 U.S.C. § 2000cc-2(a). In Sossamon v. Texas, the Supreme Court held that RLUIPA’s use of the phrase “appropriate relief’ is not an unequivocal expression of state consent to private suits for monetary damages and therefore does not operate to effect a waiver of the states’ sovereign immunity from such suits. 563 U.S. 277, 131 S.Ct. 1651, 1658-59, 179 L.Ed.2d 700 (2011); see also Oklevueha Native Am. Church of Haw. v. Holder, 676 F.3d 829, 840-41 (9th Cir.2012). Additionally, as we recognized in Wood v. Yordy, RLUIPA does not author-' ize suits for damages against state officials in their individual capacities because individual state officials are not recipients of federal funding and nothing in the statute suggests any congressional intent to hold them individually liable. 753 F.3d 899, 903-04 (9th Cir.2014). Jones’s RLUIPA claims for in-junctive relief are moot because Jones has been released from custody. Federal courts lack jurisdiction over claims that have been rendered moot because “the issues presented are no longer live” or because the parties no longer possess “a legally cognizable interest in the outcome.” Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir.2012) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)). “Once an inmate is removed from the environment in which he is subjected to the challenged policy or practice, absent a claim for damages, he no longer has a legally cognizable interest in a judicial decision on the merits of his claim.” Alvarez, 667 F.3d at 1064 (quoting Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir.2007)). Jones has been removed from the environment in which he was subjected to the alleged RLUIPA violations. The record discloses no evidence of continuing effects of the alleged violations on Jones and no reasonable expectation that Appellees could violate Jones’s rights in the future. See Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); Lindquist v. Idaho State Bd. of Corr.," }, { "docid": "6561857", "title": "", "text": "defendants’ motion for summary judgment, finding that any claims for equitable relief were moot following Wall’s transfer, and ruling that the defendants were entitled to qualified immunity on the plaintiffs claim for damages. Following the district court’s ruling, Wall was transferred back to ROSP. The defendants claim that ROSP has since abandoned its policy of requiring prisoners to possess physical indicia of faith in order to participate in Ramadan or other religious observations. The new policy, adopted in a September 13, 2011 memo by VDOC’s Chief of Corrections Operations, states that inmates in segregation facilities, such as ROSP, may demonstrate sincerity by showing that they have in the past borrowed religious material such as DVDs, CDs, or literature from the Chaplain’s office. The memo states that the change was made following an investigation by VDOC’s Inspector General, which concluded that “it is not appropriate to require inmates to buy something which is related to exercising First Amendment [flights.” Following the policy change, Wall and other inmates who were prohibited from observing Ramadan in 2010 were allowed to participate in a “make-up” Ramadan in April 2012. II. We review two issues in this appeal: whether the district court correctly determined that Wall’s equitable claims under RLUIPA and the First Amendment were moot following ROSP’s decision to abandon the 2010 Ramadan policy; and whether the district court correctly granted the defendants qualified immunity on Wall’s First Amendment claim for damages. Both issues are questions of law which we review de novo. See Green v. City of Raleigh, 523 F.3d 293, 298 (4th Cir.2008) (mootness); Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir.2007) (qualified immunity). We address the issues in turn. A. In granting the defendants’ motion for summary judgment, the district court found that Wall’s transfer to another facility mooted his request for equitable relief. Although Wall’s subsequent return to ROSP rendered this justification obsolete, the district court also ruled that in such an event Wall’s claims would remain moot in light of VDOC’s decision to terminate the 2010 Ramadan policy. It is well established that a defendant’s “voluntary cessation of" }, { "docid": "19793554", "title": "", "text": "in spite of that risk. See id. at 844, 114 S.Ct. 1970 (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably”). [2] The district court concluded correctly that the prison officials’ denial of out-of-cell exercise to Thomas for 13 months and 25 days was “sufficiently serious” to constitute a valid claim under the Eighth Amendment. As the Supreme Court noted in Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), prison officials may violate an inmate’s Eighth Amendment rights when they deprive him of “a single identifiable human need such as food, warmth, or exercise.” Id. at 304, 111 S.Ct. 2321. Here, as the district court noted, Thomas satisfies Foster and Farmers objective test based on the undisputed fact that he was denied outdoor exercise for the 13 months and 25 days. We have held consistently that “ordinarily the lack of outside exercise for extended periods is a sufficiently serious deprivation” for Eighth Amendment purposes. LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993). A prohibition on outdoor exercise of six weeks is a “sufficiently serious” deprivation to support an Eighth Amendment claim. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (en banc); Allen v. Sakai, 48 F.3d 1082, 1086 (9th Cir.1994). After determining that an individual has shown objectively that he was deprived of something “sufficiently serious,” we must next consider whether the risk to the inmate was sufficiently “obvious” to the prison officials that they must have been aware of the severity of the deprivation, before we move on to consider whether the deprivation was nonetheless reasonable in light of all of the circumstances. The district court appears, however, not to have considered whether the risk to Thomas’s health was “obvious,” but instead determined that it was “insubstantial or nonexistent,” because (i) Thomas could have signed the form at any time, and (ii) Thomas had a “substantial” disciplinary history and security conditions at the prison were “acute.” In so doing, it bypassed a necessary step" }, { "docid": "22244717", "title": "", "text": "prong of the analysis. See Act Up/Portland, 988 F.2d at 871. We agree with the district court that the prison officials are immune from liability for damages. II. Free Exercise Claim Although we affirm the grant of summary judgment as to May’s claim for damages, we must evaluate whether the factual disputes in this case require further proceedings on May’s claim for equitable relief. To sustain his free exercise claim and obtain declaratory and injunctive relief, May must demonstrate that requiring him to unbraid his dreadlocks substantially burdens his exercise of religion, and he must raise genuine issues as to the prison officials’ assertion that no less restrictive means can accomplish EOCI’s security objectives. 42 U.S.C. § 2000bb-l(b). A. Substantial Burden The prison officials do not contest the centrality of dreadlocks to Rastafarianism, but they claim that EOCI’s policy does not impose a substantial burden because May can keep his hair in dreadlocks except for those moments when he must be searched for security reasons. See Bryant, 46 F.3d at 949 (noting that the “interference must be more than an inconvenience”) (quoting Graham v. Commissioner, 822 F.2d 844, 850-51 (9th Cir.1987), affd, 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989)). The prison officials, however, have not put forth evidence that Rastafarianism ever permits unbraiding dreadlocks. May claims that undoing his dreadlocks, even temporarily, violates a biblical command and offends a fundamental tenet of his religion. See Hicks, 69 F.3d at 24 (stating that Rastafarianism mandates “never cutting or combing ones hair, instead allow ing it to grow in dreadlocks”) (emphasis added); see also Scott, 961 F.2d at 82 (“A Rastafarian’s dreadlocks are a religious symbol of a bond with God.”). Thus, May has raised a genuine issue as to whether the hair search procedure imposes a substantial burden on his exercise of Rastafarianism within the meaning of RFRA. See Stefanow, 103 F.3d at 1471. May’s compliance on a few occasions with the command to undo his dreadlocks does not undermine his description of the burden imposed; this court has held that a “ ‘use it or lose it’" }, { "docid": "22244716", "title": "", "text": "knowledge of the right to maintain a religiously motivated hair cut. Cf Malik v. Brown, 71 F.3d 724, 729-30 (9th Cir.1995) (concluding that the law governing the issue of religious name changes was clearly established because courts had consistently recognized the right to use the new name). Moreover, even if May could identify a clearly established right, he could not show that a reasonable official would have understood that undoing his dreadlocks violated that .right. \"Where “the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738. However, it is appropriate for the court to consider the information possessed by the prison officials at the time of the alleged violations. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40. The fact that May never asserted a religious interest in his dreadlocks until after the incidents complained of establishes objective reasonableness. Thus, the prison officials also are entitled to immunity under the second prong of the analysis. See Act Up/Portland, 988 F.2d at 871. We agree with the district court that the prison officials are immune from liability for damages. II. Free Exercise Claim Although we affirm the grant of summary judgment as to May’s claim for damages, we must evaluate whether the factual disputes in this case require further proceedings on May’s claim for equitable relief. To sustain his free exercise claim and obtain declaratory and injunctive relief, May must demonstrate that requiring him to unbraid his dreadlocks substantially burdens his exercise of religion, and he must raise genuine issues as to the prison officials’ assertion that no less restrictive means can accomplish EOCI’s security objectives. 42 U.S.C. § 2000bb-l(b). A. Substantial Burden The prison officials do not contest the centrality of dreadlocks to Rastafarianism, but they claim that EOCI’s policy does not impose a substantial burden because May can keep his hair in dreadlocks except for those moments when he must be searched for security reasons. See Bryant, 46 F.3d at 949 (noting that the “interference" }, { "docid": "8782368", "title": "", "text": "Satisfied that our jurisdiction is secure, we move on to the merits. We can quickly dispose of several of Maddox’s claims. Maddox’s prayers for injunctive relief are moot because he is no longer an inmate at Lawrence. See Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir.2009). Maddox has not shown a realistic possibility that he will again be incarcerated in the same state facility and therefore be subject to the actions of which he complains here. As such, “[a]ny relief that our judgment might permit would be purely speculative in nature.” See id. Further, the defendants are immune from suit under § 1983 for monetary damages in their official capacities. See Brown v. Budz, 398 F.3d 904, 917-18 (7th Cir.2005) (“To the extent [the plaintiff] seeks monetary damages from defendants acting in their official capacity, those claims ... are dismissed as they are barred by the Eleventh Amendment.”). Maddox’s RLUIPA claim also fails. Sovereign immunity shields state officials from monetary damages in their official capacity under RLUIPA. See Sossamon v. Texas, — U.S. -, 131 S.Ct. 1651, 1658-59, 179 L.Ed.2d 700 (2011); see also Nelson v. Miller, 570 F.3d 868, 884-85 (7th Cir.2009). We have also held that RLUIPA does not allow for suits against prison officials in their individual capacity. Nelson, 570 F.3d at 886-89. Because Maddox has no claim to injunctive relief in light of his transfer to Danville, he cannot seek relief under RLUIPA. So that leaves us with Maddox’s 1983 claims for monetary damages against the defendants in their individual capacities. It is to those claims we now turn. A. Section 1915A Screening — Dismissal of Counts 2 and 3 Maddox’s complaint alleges that the defendants substantially burdened the free exercise of his religion as an AHI and discriminated against his religion in violation of the First and Fourteenth Amendment. (PI. Compl., App. 1, preliminary statement). He set forth a number of factual allegations in support of his claims. He asserted that the “study of the [AHI] religion both by Plaintiff and with other [AHI] members is an integral part of the daily practice of" }, { "docid": "23591465", "title": "", "text": "state would seem to be a significant deterrent to such action. Moreover, as this opinion makes clear, Miller’s belief that a religious diet must be based on a religious “requirement” is erroneous. Going forward, Miller is on notice that he cannot lawfully base a denial on the lack of such a requirement, so revocation of the diet, again, appears particularly unlikely. While it is of course theoretically possible that the warden will reverse his decision and Miller will revoke Nelson’s non-meat diet on some other basis, that possibility is supported only by speculation and not evidence. See In re Associated Press, 162 F.3d 503, 511 (7th Cir.1998) (requiring a “reasonable expectation that the same complaining party would be subjected to the same action again”) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir.2009) (stating, in an inquiry-regarding mootness of injunctive relief in an RLUIPA case, that the court “will not require some physical or logical impossibility that the challenged policy will be reenacted absent some evidence that the voluntary cessation is a sham for continuing possibly unlawful conduct”). We therefore affirm the district court’s finding that Nelson’s claim for injunctive relief is moot. Declaratory relief survives as a predicate for damages, and we therefore proceed to the other remedies issues. See Crue v. Aiken, 370 F.3d 668, 677 (7th Cir.2004) (“When a claim for injunctive relief is barred but a claim for damages remains, a declaratory judgment as a predicate to a damages award can survive”). 2. Official Capacity Claims: Sovereign Immunity Under Section 1983, RLUIPA, and IRFRA Defendant argues that Nelson’s claim for damages against him in his official capacity are barred under Section 1983 (a point conceded by Nelson), RLUIPA and IRFRA. In its summary judgment order, the district court held that the Eleventh Amendment barred claims for damages against Miller in his official capacity under RLUIPA but held that IRFRA allows damages against the State. Plaintiff argues that he should be able to obtain official capacity damages against" }, { "docid": "6561875", "title": "", "text": "was somewhat unique among Virginia Department of Corrections (\"VDOC”) facilities. Most prisons maintain a \"religious pass list,\" which keeps track of which inmates participate in specific religious services. However, because most ROSP inmates are in long-term administrative segregation, ROSP does not offer group religious services. Consequently, ROSP does not keep a religious pass list. . In 2010, with the new policy in place, only 176 of the 360 inmates who signed up to participate provided the necessary materials. The other 187 inmates were prohibited from observing the fasting hours. . Although the judgment itself does not reference the nature of Wall's underlying claim, he later received a letter from the Virginia Attorney General’s office explaining that it was in response to “founded grievances regarding ... lost property_\" J.A. 126. . The memo was not submitted as evidence in this case and is therefore not part of the record, but it was referenced in a related case involving the same policy. DePaola v. Wade, No. 7:11-cv-00198, 2012 WL 1077678, *8, 2012 U.S. Dist. LEXIS 44340, *7-10 (W.D.Va. Mar. 30, 2012). . We note at the forefront that Congress did not authorize damages claims against state officials under RLUIPA. See Sossamon v. Texas, - U.S. -, 131 S.Ct. 1651, 1658-59, 179 L.Ed.2d 700 (2011) (prohibiting damages claims against state officials in their official capacity); Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir.2009) (same for individual capacity). Therefore, the plaintiffs only potential remedies under RLUIPA are equitable. . As an initial matter, the defendants argue that, to the extent Wall has a justiciable claim for equitable relief, his amended complaint failed to request injunctive relief in particular. While it is true that his original complaint was more specific than the amended complaint, we are comfortable reading Wall’s prayer for any relief deemed “just, proper, and equitable” as encompassing a claim for injunctive relief. An appropriately liberal reading of the amended complaint indicates that Wall sought to prevent the defendants from wrongfully limiting his observance of Ramadan in the future through the issuance of an injunction. See De’lonta v. Johnson, 708 F.3d 520," }, { "docid": "14222152", "title": "", "text": "cannot be used to subject individual defendants, such as state employees, to individual liability in a private cause of action. Smith, 502 F.3d at 1274 (citing Title IX eases). These courts have concluded that because RLUIPA liability arises from receipt of federal funds, only the grant recipient — the state — may be held liable for a violation of RLUIPA. See Sossamon I, 560 F.3d at 328 (citing Smith, 502 F.3d at 1272-73); see also 42 U.S.C. § 2000cc-1(b). Prison Officials have not challenged the viability of Kuperman’s personal-capacity claim, and we need not reach the issue. As we explain in the next section, even assuming such a claim to be available, Kuperman is not entitled to relief under RLUIPA. We therefore reserve ruling on whether personal-capacity claims are available under RLUIPA, as have our sister courts in the Second and Ninth Circuits. See Hall v. Ekpe, No. 09-4492-pr, 428 Fed.Appx. 93, 94-95, 2011 WL 2600514, at *1 (2d Cir.2011); Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 n. 3 (9th Cir.2011). RLUIPA provides greater protection to inmates’ free-exercise rights than does the First Amendment. See, e.g., Spratt, 482 F.3d at 42 n. 12. It bars prisons receiving federal funds from substantially burdening an inmate’s religious exercise unless the regulation under attack is the least restrictive way to advance a compelling state interest. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 715-16, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Prison Officials conceded, for summary judgment purposes only, that the shaving regulation substantially burdened Kuperman’s religious exercise. So the battle is over whether they showed that PPD 7.17 furthers a compelling governmental interest and whether it was the least restrictive means of doing so. In our discussion of Kuperman’s § 1983 claims, we noted that Prison Officials submitted evidence showing that the shaving regulation promotes prison security in several specific ways. Because prison security is undoubtedly a compelling state interest, we conclude that they have met their burden of demonstrating that PPD 7.17 furthers a compelling governmental interest. See, e.g., Spratt, 482 F.3d at 39 (citing Cutter, 544 U.S." }, { "docid": "11276843", "title": "", "text": "not to participate in other religious activities with other inmates. Thus, Cryer has alleged sufficiently that he is forced to modify his religious behavior, to violate his religious beliefs, and/or to depart significantly from his religious traditions, and that the restrictions do not amount simply to an “incidental” impact on his religious exercise. Further, defendants have not given any explanation for the lack of any Native American clergy member or volunteer or the availability of comparable clergy. See Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599, 614-15 (5th Cir.2008) (holding the availability of an outside volunteer only once every 18 months, and no evidence that new volunteers would likely be available to reduce burden on prisoner’s ability to worship in a group, permitted a reasonable basis for a factfinder to conclude the prison’s volunteer policy imposed a substantial burden). In short, although the defendants argue in their Memorandum that there is no substantial burden from a restriction on a prisoner if there are alternative means to pursue his religion, they have not offered information to demonstrate that there aré, in fact, alternative means available to Cryer, nor have they shown there is a compelling governmental interest in imposing the restrictions. Accordingly, this Court will not dismiss Cryer’s RLUIPA claim based on the defendants’ assertion that he has failed to establish a substantial burden upon his free exercise of religion. a. Monetary Damages Under RLUIPA: Official Capacity Claims Next, defendants contend that Cryer cannot recover monetary damages against them under RLUIPA for conduct done in their official capacities because Massachusetts has not waived its sovereign immunity from suit for damages. This Court agrees. See Sossamon v. Texas, — U.S. —, 131 S.Ct. 1651, 1660, 179 L.Ed.2d 700 (2011) (holding that the phrase “appropriate relief’ was “not so free from ambiguity that we may conclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their sovereign immunity to suits for damages.”). Thus, under a strict construction in favor of the sovereign state, as required, the Supreme Court concluded that appropriate relief for violations of RLUIPA did" }, { "docid": "406916", "title": "", "text": "claim, official-capacity defendants Cate and Lattimore are properly named in their state constitutional claim, as are the respective entities that employ them— CDCR and CCWF. Also consistent with previous analyses, Plaintiffs lack standing to bring their claim against the SPB, DCP, Sayles-Owen, and Smith. F. District Court’s Denial of Leave to Amend Plaintiffs’ Complaints Plaintiffs appeal the district court’s denial of their motion for leave to amend each of their three complaints. Because we remand Plaintiffs’ Establishment Clause and state constitutional claims, we only address their appeal with respect to the remaining causes of action in the First Amended Complaint. The district court’s denial of a motion to amend a complaint is reviewed for an abuse of discretion. See Ordonez v. Johnson, 254 F.3d 814, 815-16 (9th Cir. 2001). A district court may deny leave to amend when amendment would be futile. Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir.2000). In the First Amended Complaint, Plaintiffs allege that defendants violated their rights under the Free Exercise Clause, Equal Protection Clause, and RLUIPA, by refusing to hire a paid full-time Wiccan chaplain. Because we hold that Plaintiffs’ access to and receipt of religious services provided by full-time chaplains of other faiths and a volunteer Wiccan chaplain belies their claims, further amendment would be futile. The district court therefore did not abuse its discretion in denying Plaintiffs leave to amend the First Amended Complaint. IV. CONCLUSION For the foregoing reasons, the district court’s dismissal of Plaintiffs’ claims under the Free Exercise Clause, Equal Protection Clause, and RLUIPA is affirmed. Because Plaintiffs sufficiently pleaded facts supporting a plausible claim under the Establishment Clause and the California State Constitution, we remand both claims to the district court for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . Hartmann’s release from CDCR custody renders moot her claims for declaratory and injunctive relief. See Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir.2012) (claims seeking in-junctive and declaratory relief generally become moot upon inmate's release from custody because inmate is no longer subject to the challenged" }, { "docid": "10030735", "title": "", "text": "or by statute. See Swierkiewicz, 534 U.S. at 513, 122 S.Ct. 992. Accordingly, we hold that RLUIPA claims need satisfy only the ordinary requirements of notice pleading, and that a complaint’s failure to cite RLUIPA does not preclude the plaintiff from subsequently asserting a claim based on that statute. Under this pleading standard, it is sufficient that the complaint, alone or supplemented by any subsequent filings before summary judgment, provide the defendant fair notice that the plaintiff is claiming relief under RLUIPA as well as the First Amendment. Having concluded that the district court erred in not addressing Alvarez’s RLUIPA claim, we vacate its grant of summary judgment as to his religious exercise claims without reaching his constitutional arguments in support of reversal. See Anchustegui v. Dep’t of Agric., 257 F.3d 1124, 1129 (9th Cir.2001). This panel shall retain jurisdiction over any subsequent appeals in this matter. Alvarez shall recover his costs on appeal. AFFIRMED IN PART AND REVERSED IN PART; REMANDED. . Alvarez also claimed that he was deprived of access to legal materials in violation of Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). We affirm the district court's grant of summary judgment as to this claim because Alvarez has not \"allege[d] injury, such as inability to file a complaint or defend against a charge” resulting from deficiencies in access. Jones v. Blanas, 393 F.3d 918, 936 (9th Cir.2004). Failure to show that a “nonfrivolous legal claim had been frustrated” is fatal to his Bounds claim. Lewis v. Casey, 518 U.S. 343, 353 & n. 4, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). . In addition to declaratory and injunctive relief, Alvarez sought a total of $55,000 in damages, so his subsequent release from custody has not mooted this action. See Rhodes v. Robinson, 408 F.3d 559, 566 n. 8 (9th Cir.2005). . As we noted in Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir.2008), Freemans requirement that an inmate must show that the prison had burdened \"conduct mandated by his faith” to state a viable free exercise claim under the" }, { "docid": "406917", "title": "", "text": "RLUIPA, by refusing to hire a paid full-time Wiccan chaplain. Because we hold that Plaintiffs’ access to and receipt of religious services provided by full-time chaplains of other faiths and a volunteer Wiccan chaplain belies their claims, further amendment would be futile. The district court therefore did not abuse its discretion in denying Plaintiffs leave to amend the First Amended Complaint. IV. CONCLUSION For the foregoing reasons, the district court’s dismissal of Plaintiffs’ claims under the Free Exercise Clause, Equal Protection Clause, and RLUIPA is affirmed. Because Plaintiffs sufficiently pleaded facts supporting a plausible claim under the Establishment Clause and the California State Constitution, we remand both claims to the district court for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . Hartmann’s release from CDCR custody renders moot her claims for declaratory and injunctive relief. See Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir.2012) (claims seeking in-junctive and declaratory relief generally become moot upon inmate's release from custody because inmate is no longer subject to the challenged prison conditions or policies). . The defendants include the following: (1) the California State Personnel Board (“SPB”); the SPB’s five board members in their official capacities — (2) Sean Harrigan; (3) Richard Costigan; (4) Patricia Clarey; (5) Tom Maely; and (6) Anne Sheehan (\"SPB Members”) (collectively, the \"SPB Defendants”); (7) the State of California; (8) CDCR; (9) CDCR Secretary Cate in his official and individual capacities; (10) Chief of CDCR Inmate Appeals Branch Ñola Grannis in her official and individual capacities; (11) Division of Community Partnerships (\"DCP”); (12) DCP Director Del Sayles-Owen in his official and individual capacities; (13) DCP Community Resource Manager Barry Smith in his official capacity; (14) the Division of Adult Institutions (\"DAI”); (15) DAI Director Suzan Hubbard in her official capacity; (16) CCWF; (17) CCWF Warden Mary Lattimore in her official capacity; and (18) Governor Arnold Schwarzenegger in his official capacity- . Defendants argue that Plaintiffs failed to preserve their right to appeal the claims dismissed with prejudice in the First Amended Complaint because Eastern District of California Local Rule 220" }, { "docid": "22186492", "title": "", "text": "unsupported, conclusional allegations that defendants purposefully discriminated against him” that we found inadequate in Adkins, These claims are without merit, so summary judgment in favor of the defendants was proper. III. CONCLUSION For the foregoing reasons, we REVERSE the district court’s grant of summary judgment to Texas and the other defendants on Sossamon’s RLUIPA and First Amendment claims for declaratory and injunctive relief arising out of the chapel-use policy and REMAND for further proceedings consistent with this opinion. We DISMISS AS MOOT so much of the appeal as relates to Sossamon’s claims for injunctive and declaratory relief based on the cell-restriction policy with instructions that the district court VACATE those portions of its opinion as well. Otherwise, we AFFIRM the grant of summary judgment in favor of Texas and the defendants in their official and individual capacities on all (1) claims under TRFRA, the Eighth Amendment, and the Fourteenth Amendment; (2) all claims for dam ages under the First Amendment; (3) and all claims for damages under RLUIPA. DISMISSED AS MOOT IN PART; REVERSED IN PART; AFFIRMED IN PART; REMANDED. . Sossamon does not allege that he has been subjected to a strip search and did not file an administrative grievance of this matter to the prison, as required by the Prison Litigation Reform Act (“the PLRA”). .They are: Christina Melton Crain (Chair of the Texas Board of Criminal Justice), Cathy Clement (Assistant Regional Director for Region VI of the TDCJ), Brad Livingston (Executive Director of the TDCJ), Doug Dretke (former Director of the TDCJ — Correctional Institutions Division; Nathaniel Quarterman, the current Director, automatically replaced Dretke as the defendant against whom the official-capacity claims are brought, see Fed. R.App. P. 43(c)(2)), Reverend R.G. Murphy (Region V Program Administrator for the Chaplaincy Department, Rehabilitation, and Reentry Programs Director of the TDCJ), Robert Eason (Senior Warden of Robertson), Stacy Jackson (Assistant Warden of Robertson), and Paul Klein (a volunteer chaplain at Robertson). All were sued in their personal and official capacities. Sossamon subsequently moved to dismiss all of his TRFRA individual-capacity claims against all defendants and to dismiss all claims against" }, { "docid": "23300884", "title": "", "text": "OPINION EBEL, Circuit Judge: The question presented here is what relief is available to Plaintiff-Appellant Blackie Alvarez, a former inmate in the Oregon Department of Corrections (“ODOC”), on claims alleging that ODOC employees substantially burdened the practice of his religion in violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5. Money damages are not available under RLUIPA against state officials sued in their official capacity. And, because the ODOC has released Alvarez from its custody, his claims for declaratory and injunctive relief are moot. Therefore, having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district court’s dismissal of Alvarez’s claims. BACKGROUND In June 2004, Alvarez sued several ODOC officials in their official capacity, alleging, among other things, that they were substantially burdening Alvarez’s practice of his Native American religion. The district court granted the ODOC officials summary judgment, but this court remanded Alvarez’s claims for further consideration under RLUIPA. Alvarez v. Hill, 518 F.3d 1152, 1154-55, 1159 (9th Cir.2008). On remand, the district court again granted the ODOC officials summary judgment and dismissed Alvarez’s RLUIPA claims, ruling: 1) money damages are not available under RLUIPA against state officials sued in their official capacity; and 2) in light of Alvarez’s release from ODOC custody, his claims for declaratory and injunctive relief are moot. Alvarez appeals, challenging both determinations. DISCUSSION I. Oregon’s sovereign immunity bars Alvarez’s RLUIPA claims for money damages against Defendants sued in their official capacity We review de novo questions of Eleventh Amendment sovereign immunity. See Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 (9th Cir.2010). The Supreme Court, in Sossamon v. Texas, held that money damages under RLUIPA are not available against states because of their sovereign immunity. See - U.S. -, 131 S.Ct. 1651, 1655, 179 L.Ed.2d 700 (2011). And, “[f|or sovereign-immunity purposes, we treat [a] suit against state officials in their official capacities as a suit against the state.” Holley, 599 F.3d at 1111. Therefore, the district court did not err in dismissing Alvarez’s claims for money damages. II. Alvarez’s claims for declaratory and" }, { "docid": "22288127", "title": "", "text": "of CPR and all but forty-one had received training on the amended CPR policy. Following St. Jovite’s death, it was determined that MTA Hak and RN Hill “need[ed] instruction as to immediate implementation of CPR even when there are no signs of life. Training was completed 5/11/06,” one day after St. Jovite’s death. Defendant Dr. Alvaro Tranquina was the Chief Medical Officer at CSP-Solano and was responsible for ensuring that medical staff was properly trained and certified in providing medical care, including life saving measures such as CPR. II. Discussion A district court’s grant of summary judgment in a § 1983 action is reviewed de novo. See Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 763 (9th Cir.2006). We must determine “whether, viewing the evidence in the light most favorable to the non-moving party, there are genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). “An issue of material fact is genuine ‘if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.’ ” Thomas v. Ponder 611 F.3d 1144, 1150 (9th Cir.2010) (quoting Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006)). For an inmate to bring a valid § 1983 claim against a prison official for a violation of the Eighth Amendment, he must first “objectively show that he was deprived of something ‘sufficiently serious.’ ” Foster v. Runnels, 554 F.3d 807, 812 (9th Cir.2009) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). “A deprivation is sufficiently serious when the prison official’s act or omission results ‘in the denial of the minimal civilized measure of life’s necessities.’” Id. (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). Next, the inmate must “make a subjective showing that the deprivation occurred with deliberate indifference to the inmate’s health or safety.” Foster, 554 F.3d at 812. To satisfy this subjective component of deliberate indifference, the inmate must show that prison officials “kn[e]w[] of and disregarded]” the" }, { "docid": "19793555", "title": "", "text": "v. Maass, 12 F.3d 1444, 1457 (9th Cir.1993). A prohibition on outdoor exercise of six weeks is a “sufficiently serious” deprivation to support an Eighth Amendment claim. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (en banc); Allen v. Sakai, 48 F.3d 1082, 1086 (9th Cir.1994). After determining that an individual has shown objectively that he was deprived of something “sufficiently serious,” we must next consider whether the risk to the inmate was sufficiently “obvious” to the prison officials that they must have been aware of the severity of the deprivation, before we move on to consider whether the deprivation was nonetheless reasonable in light of all of the circumstances. The district court appears, however, not to have considered whether the risk to Thomas’s health was “obvious,” but instead determined that it was “insubstantial or nonexistent,” because (i) Thomas could have signed the form at any time, and (ii) Thomas had a “substantial” disciplinary history and security conditions at the prison were “acute.” In so doing, it bypassed a necessary step in its inquiry, and proceeded instead directly to the question of reasonableness. We therefore turn, in the first instance, to the question that the district court erroneously omitted: whether the risk to Thomas’s health was “obvious” to the prison officials. Any argument that the risk to Thomas’s health was not “obvious” fails as a matter of law. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Farmers obviousness requirement does not necessitate a showing that an individual prison official had specific knowledge that harsh treatment of a particular inmate, in particular circumstances, would have a certain outcome. Rather, we measure what is “obvious” in light of reason and the basic general knowledge that a prison official may be presumed to have obtained regarding the type of deprivation involved. Id. For example, for the purposes of an obviousness analysis, a prison warden is deemed to have the general knowledge that is expected, at a minimum, of an individual performing the functions of that job. He cannot disclaim an understanding that is essential to the performance of" }, { "docid": "23300885", "title": "", "text": "granted the ODOC officials summary judgment and dismissed Alvarez’s RLUIPA claims, ruling: 1) money damages are not available under RLUIPA against state officials sued in their official capacity; and 2) in light of Alvarez’s release from ODOC custody, his claims for declaratory and injunctive relief are moot. Alvarez appeals, challenging both determinations. DISCUSSION I. Oregon’s sovereign immunity bars Alvarez’s RLUIPA claims for money damages against Defendants sued in their official capacity We review de novo questions of Eleventh Amendment sovereign immunity. See Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 (9th Cir.2010). The Supreme Court, in Sossamon v. Texas, held that money damages under RLUIPA are not available against states because of their sovereign immunity. See - U.S. -, 131 S.Ct. 1651, 1655, 179 L.Ed.2d 700 (2011). And, “[f|or sovereign-immunity purposes, we treat [a] suit against state officials in their official capacities as a suit against the state.” Holley, 599 F.3d at 1111. Therefore, the district court did not err in dismissing Alvarez’s claims for money damages. II. Alvarez’s claims for declaratory and injunctive relief are moot Mootness presents a question of law reviewed de novo. See Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir.2011). Article III of the federal constitution “restricts federal courts to the resolution of cases and controversies,” Davis v. Fed. Election Comm’n, 554 U.S. 724, 732, 128 S.Ct. 2759,171 L.Ed.2d 737 (2008), and requires that “a justiciable case or controversy ... remain extant at all stages of review,” United States v. Juvenile Male, — U.S. -, 131 S.Ct. 2860, 2864, 180 L.Ed.2d 811 (2011) (per curiam) (internal quotation marks omitted). A claim is moot “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (internal quotation marks omitted). Here, without his damages claims, Alvarez no longer has a legally cognizable interest in the outcome of this case. Alvarez was an inmate in the ODOC’s custody in 2004 when he initiated this litigation, alleging ODOC officials were" } ]

[ { "docid": "10890005", "title": "", "text": "“received several ... grievances from Curtis” before the incident in question, and that she would have processed this one if she had received it, supports Curtis’s contention that an alternate filing procedure exists. That an informal practice might have developed would not be surprising given that the written procedures specify that the social worker is the one who retrieves grievances from the lockbox. What the defendants really contend, then, is that, no matter what the facts may show as to accepted practice, an inmate will have failed to exhaust as a matter of law any time prison officials decide to assert noncompliance with a written grievance procedure that effectively has been modified with staff acquiescence or participation. In the view of the defendants, moreover, it makes no difference whether prison officials encourage, or even invite, noncompliance with written procedure. Pozo does not support this result. That case holds that the rules governing administrative exhaustion under § 1997e(a) “come from the prison grievance systems themselves,” Strong v. David, 297 F.3d 646, 649 (7th Cir.2002), but we did not define the “administrative rules” that a prisoner must follow, see Pozo, 286 F.3d at 1025, as those reduced to writing whether or not followed in practice. Other courts have specifically rejected arguments similar to the one presented by the defendants. See, e.g., Brown v. Croak, 312 F.3d 109, 112 (3d Cir.2002) (holding that when prison officials told prisoner that grievance procedures were different than official procedures, prisoner was not required to follow written procedures); see also Brown v. Valoff, 422 F.3d 926, 936 (9th Cir.2005) (stating that information provided to prisoner concerning operation of grievance procedures was relevant in deciding whether available remedies had been exhausted). The defendants did not provide sufficient evidence to establish the absence of a material dispute concerning Curtis’s method of filing a grievance at the jail. That question remains to be decided, as does the question whether Curtis in fact hand-delivered the grievance to Sister Dowd as he maintains. As such, material issues of fact still remain. We therefore Vacate the grant of summary judgment and Remand for" } ]

[ { "docid": "22795837", "title": "", "text": "it to one of the deputies.”) (emphasis added in each). Our prior prisoner exhaustion cases required jail officials to prove that they did not “hide the ball” from defendants. See, e.g., Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir.2010) (“[Ijmproper screening of an inmate’s administrative grievances renders administrative remedies ‘effectively unavailable’ such that exhaustion is not required under the PLRA.”); Nunez v. Duncan> 591 F.3d 1217, 1224 (9th Cir.2010) (excusing inmate’s failure to exhaust, because “he took reasonable and appropriate steps to exhaust his ... claim and was precluded from exhausting, not through his own fault but by the Warden’s mistake”); Mar ella v. Terhune, 568 F.3d 1024, 1027 (9th Cir.2009) (per curiam) (excusing inmate’s failure to exhaust, because he pursued some relief but was informed by prison personnel that no remedies were available). Today, the majority requires jail officials prove that, not only did they not hinder a prisoner’s access to administrative remedies, but also that they informed the prisoner of them. What comes in the next case to excuse a sympathetic plaintiff? Albino’s counsel'conceded at oral argument that Albino never even asked if there were a grievance procedure. Although Albino spoke with his attorney about seeking medical care, the record does not show that he ever raised the issue of seeking protective confinement with him. His sole complaint: the Jail did not inform him of the procedure. As Baca’s counsel aptly noted in oral argument, this case boils down to an inmate that alleges “I didn’t see” rather than “I looked and couldn’t find”; that alleges “no one told me” rather than “I asked and wasn’t told or was told misinformation.” Indeed, neither the PLRA nor the Supreme Court has ever imposed such a duty on jail officials (alleging failure to exhaust) when the prisoner only alleged ignorance of the procedures; nor have any of the federal courts of appeal. To the contrary, the majority’s opinion creates a split with the Eighth and Tenth Circuits, which have held that such is irrelevant to defendants’ burden. See Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.2000) (“Section 1997e(a)" }, { "docid": "22154253", "title": "", "text": "at 686 (holding that administrative remedies were not available where the prison official warned the prisoner not to file a grievance and successfully pressured other inmates to assault the prisoner in order to prevent the prisoner from pursuing the grievance); Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir.2002) (holding that a complaint was sufficient to survive a motion to dismiss for failure to exhaust where prisoner alleged that prison officials told him he could not file a formal griev anee until the completion of an investigation, but failed to tell him when that event occurred); Miller v. Norris, 247 F.3d 736, 738, 740 (8th Cir.2001) (holding that the prisoner’s allegation and evidence that prison officials refused to mail the prisoner the required administrative forms was sufficient to raise an inference that he had exhausted available remedies); cf. Panaro v. City of N. Las Vegas, 432 F.3d 949, 952-53 (9th Cir.2005) (holding that pretrial detainee must allege that the detention center’s grievance process was “systematically unavailable to him”). Here, the prison’s clerical error created no such barrier to Nunez’s ability to use administrative procedures. Nunez’s original BP-8 raised his complaint that Duncan’s use of a raffle to determine who would be subject to a strip search violated Nunez’s Fourth Amendment rights. See Maj. Op. at 1220. Angus’s response to Nunez’s BP-8 directly addressed Nunez’s Fourth Amendment concerns by explaining that Duncan’s lottery system was a fair method to conduct random searches. See Maj. Op. at 1220. Nunez did not carry this claim to the next stage of administrative review, but instead sought from prison officials a copy of the program statement that authorized the search. See Maj. Op. at 1220-22. The prison officials inadvertently miscited the program statement Nunez requested, see Maj. Op. at 1220, but did not deny Nunez access to the grievance process. The majority recognizes this point when it states “[w]hen Nunez could not find[Program Statement 5500.09] in the prison library, he filed three successive BP-8s attempting to obtain it.” Maj. Op. at 1225. Nor is there any evidence in the record that prison officials told Nunez" }, { "docid": "398762", "title": "", "text": "reasonable dispute, that the jail would have or could have accepted a late submission or otherwise relaxed its stated rules. See Dale, 376 F.3d at 656 (vacating summary judgment; defendants could not argue that. they would have accepted prisoner grievance even if not filed on the specific form required by administrative policy). Prisoners are required to exhaust grievance procedures they have been told about, but not procedures they have not been told about. See Pavey v. Conley, 663 F.3d 899, 906 (7th Cir.2011); Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir.2005); Carroll v. Yates, 362 F.3d 984, 985 (7th Cir.2004). They are not required to divine the availability of other procedures. If authorities could change their grievance rules once litigation began or simply keep prisoners in the dark about the real rules, they could always defeat prisoner suits by announcing impossible procedural hurdles beforehand and then, when they are sued, explaining that they would have waived the requirements for the plaintiff. See Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir.2006) (reversing summary judgment for defendants; where prison officials argued they would have permitted late grievance after transfer, it was unknown both whether late grievance would be considered and whether prisoner had way to know a late grievance might be considered); Dale, 376 F.3d at 656 (vacating summary judgment for defendants; prisoner offered evidence that prison officials refused his request for required grievance form; officials argued on appeal that prisoner was not required to use specified form but pointed to no regulation that would excuse failure to use required form). The Prison Litigation Reform Act was not meant to impose the rule of “heads we win, tails you lose” on prisoner suits. See Kaba, 458 F.3d at 684 (“Prison officials may not take unfair advantage of the exhaustion requirement”), quoting Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006). In short, the defendants did not show that they were entitled to summary judgment as a matter of law. In fact, the record at this point demonstrates the contrary. The jail’s administrative remedy was simply not available to transferred prisoners" }, { "docid": "5511774", "title": "", "text": "be done by the inmate when a decision is never made: “If the inmate is not satisfied with the grievance officer’s decision, He/ She may appeal to the Warden....’’ (J.A. 675). Thus, the Court erroneously read an additional requirement into CCCF’s grievance procedures. Because CCCF procedures did not contemplate an appeal from a non-decision, when Small failed to receive even a response to the grievances addressing the June 18 and June 28, 2005 incidents, much less a decision as to those grievances, the appeals process was unavailable to him. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002) (agreeing with the Eighth and Fifth Circuits that “administrative remedies [are] exhausted when prison officials fail to respond to inmate grievances because those remedies ha[ve] become 'unavailable’ ”); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002) (“[T]he failure to respond to a grievance within the time limits contained in the grievance policy renders an administrative remedy unavailable”); see also Boyd v. Corrs. Corp. of Am., 380 F.3d 989, 996 (6th Cir.2004) (“[Administrative remedies are exhausted when prison officials fail to timely respond to a properly filed grievance”); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.1999) (“A prisoner’s administrative remedies are deemed exhausted when a valid grievance has been filed and the state’s time for responding thereto has expired.”); cf. Brown, 312 F.3d at 111 (“The PLRA does not require exhaustion of all remedies. Rather, it requires exhaustion of such administrative remedies as are available.” (internal quotation marks omitted)). Accordingly, we -will vacate the order of the District Court dismissing those grievances and remand for further proceedings as to them. IV. Conclusion We will vacate the order of the District Court dismissing the grievances arising from the incidents of June 18, 2005 and June 28, 2005, and remand for further proceedings consistent with this Opinion. We will,-in all other respects, affirm the order of the District Court dismissing the complaint. APPENDIX INMATE GRIEVANCE PROCEDURE It is the policy of this Department to provide to its inmates an internal grievance mechanism for the resolution of Complaints arising from institutional matters, so" }, { "docid": "6212324", "title": "", "text": "he aver that he relied on the Warden's statements in deciding not to file a grievance. In addition, Plaintiff does not argue that the Warden or other prison officials misled him about the grievance process or indicated that he should not or could not pursue it. In any event, again, his claim is only that he was not aware of the process. See Opp. at 4. While it is clear that affirmative misconduct that prevents an inmate from exhausting renders administrative remedies unavailable, see, e.g., Little v. Jones, 607 F.3d 1245, 1250 (10th Cir.2010) (“Where prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of an administrative remedy, they render that remedy ‘unavailable’ and a court will excuse the prisoner’s failure to exhaust”); Turner v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir.2008) (an administrative remedy is not available for purposes of PLRA where prison officials render pursuit of remedy irrational through serious threats of substantial retaliation), there is less clarity with regard to cases involving claims that prison officials failed to inform inmates of the grievance system. See Womack, 2008 WL 822114, at *6 (discussing split). While this Circuit has not yet weighed in on the issue, the majority of courts to have done so have held that an inmate’s subjective lack of information about his administrative remedies does not excuse a failure to exhaust. In Twitty v. McCoskey, 226 Fed.Appx. 594 (7th Cir.2007), a pretrial detainee sued staff members of a county jail under § 1983, alleging that they were deliberately indifferent to his medical needs. Id. at 595. The detainee argued that he should “not [have been] required to exhaust administrative remedies when he was unaware of any formal grievance procedure available at the jail. He argue[d] that the jail failed to make him aware of the procedure, and that this omission should excuse him from having to formally comply with it.” Id. at 596. The Seventh Circuit rejected this argument, stating, “A prisoner’s lack of awareness of a grievance procedure, however, does not excuse compliance.” Id. The court reasoned that the exhaustion requirements of" }, { "docid": "8540309", "title": "", "text": "ignorant of them, so long as the inmate had a fair, reasonable opportunity to apprise himself of the procedures. E.g., Leggett, 608 Fed.Appx. at 191 (“[E]ven if Leggett was subjectively unaware of the procedures, the record sets out the substance of those procedures and indicates that the information was available to Leggett.”); Plaisance v. Cain, 374 Fed.Appx. 560, 561 (5th Cir.2010) (unpublished) (“Plaisance’s ignorance of the law does not relieve him of his obligation to comply with procedural requirements.”). Here, undisputed evidence shows that the jail’s grievance procedures are published in an inmate handbook, which is in the record, and explained on jail television, and Davis does not contend that any circumstances precluded him from accessing either source. Therefore, his ignorance of the grievance procedures, without more, is no basis to deem them unavailable. The second relevant rule, however, provides a contrary result here, viz.: Grievance procedures are unavailable to an inmate if the correctional facility’s staff misled the inmate as to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust such process. E.g., Dillon, 596 F.3d at 268 (“[PJrison officials’ statements concerning administrative remedies can render such remedies unavailable.”); Pavey v. Conley, 663 F.3d 899, 906 (7th Cir.2011) (“An administrative remedy is not ‘available,’ and therefore need not be exhausted, if prison officials erroneously inform an inmate that the remedy does not exist or inaccurately describe the steps he needs to take to pursue it.”); Brown, 312 F.3d at 112 (“The defendants concede that their failure to exhaust argument would have no merit if Brown was told to wait until the security investigation was complete before filing a grievance. We agree.”); Brownell v. Krom, 446 F.3d 305, 312 (2d Cir.2006) (“Brownell’s decision to abandon his reimbursement claim and pursue the grievance instead is directly traced to a prison official's advice to Brownell to follow that course. As a result of heeding this advice, Brownell could no longer appeal his reimbursement claim ... because the time for doing so had then passed. In this special circumstance, we can hardly impute the" }, { "docid": "20819226", "title": "", "text": "it did 70 days after his hand injury and thus ten days too late; for section 504.810(a) provides that “a grievance shall be filed within 60 days after the discovery of the incident, occurrence, or problem that gives rise to the grievance.” The district judge agreed, and so ruled that the Board had properly refused to accept Roberts’s appeal and therefore Roberts hadn’t exhausted his administrative remedies. Roberts claims to have filed a separate grievance against one of the Big Muddy employees, nurse Davis. That claim was dismissed because, though she had mistreated him (he contends) at Big Muddy, Roberts had filed his grievance with a grievance officer at Pinckneyville; he should have filed it with the Administrative Review Board, as noted in the preceding paragraph. Dismissal on that ground was too abrupt, however, given the absence of any inquiry into what Roberts could reasonably be expected to know about the proper way to proceed against a prison employee in a different prison. It can’t be assumed without some evidence that a prisoner is aware of section 504.870(a)(4), which required Roberts, so far as his claim against Davis (or anyone else at Big Muddy) was concerned, to bypass all grievance officers and go directly to the Administrative Review Board, even though ordinarily the grievance procedure begins, as prisoners must know, with a complaint to a grievance officer. We have searched for publicly available material explaining in terms intelligible to lay persons how to proceed in the situation in which Roberts found himself, and have not found any; nor is there any in the record. Although “when administrative procedures are clearly laid out ... an inmate must comply with them in order to exhaust his remedies,” Pavey v. Conley, 663 F.3d 899, 905 (7th Cir.2011), prisoners must “be informed of the grievance procedure at the admitting facility.” § 504.810(d). Roberts filed his grievance against Davis at Pinck-neyville, and, as we’re about to see, it was likely to be interpreted as concerning mistreatment there rather than at Big Muddy, and in that event the grievance officer would not have told him to" }, { "docid": "8540310", "title": "", "text": "inmate to fail to exhaust such process. E.g., Dillon, 596 F.3d at 268 (“[PJrison officials’ statements concerning administrative remedies can render such remedies unavailable.”); Pavey v. Conley, 663 F.3d 899, 906 (7th Cir.2011) (“An administrative remedy is not ‘available,’ and therefore need not be exhausted, if prison officials erroneously inform an inmate that the remedy does not exist or inaccurately describe the steps he needs to take to pursue it.”); Brown, 312 F.3d at 112 (“The defendants concede that their failure to exhaust argument would have no merit if Brown was told to wait until the security investigation was complete before filing a grievance. We agree.”); Brownell v. Krom, 446 F.3d 305, 312 (2d Cir.2006) (“Brownell’s decision to abandon his reimbursement claim and pursue the grievance instead is directly traced to a prison official's advice to Brownell to follow that course. As a result of heeding this advice, Brownell could no longer appeal his reimbursement claim ... because the time for doing so had then passed. In this special circumstance, we can hardly impute the frustration of administrative appellate review to Brownell.”) (citation omitted); Gaspard v. Castillo, No. 1:08— CV-1484, 2011 WL 149366, at *5 (E.D.Cal. Jan. 18, 2011) (rejecting exhaustion defense based on evidence that the plaintiff was misinformed about grievance procedures);. Shaw v. Jahnke, 607 F.Supp.2d 1005, 1009, 1011 (W.D.Wis.2009) (same); Born v. Monmouth Cnty. Com Inst., No. 3:07-CV-3771, 2008 WL 4056313, at *4 (D.N.J. Aug. 28, 2008) (same); Lewis v. Cunningham, No. 1:05-CV-9243, 2007 WL 2412258, at *2 (S.D.N.Y. Aug. 23, 2007) (same). The application of that rule here is straightforward. Davis testifies that jail staff told him that the grievance process includes only a single step — that he had no option to appeal — and he, relying on that misrepresentation, did not file an- appeal. Based on the record of this case, we see no reason that Davis should not be entitled to rely on the representations of his jailers. See Brown, 312 F.3d at 112-13 (inmates are “entitled to rely on instructions by prison officials that are at odds with the wording of [the" }, { "docid": "8540308", "title": "", "text": "did not exhaust administrative remedies that were actually available to him. Cantwell, 788 F.3d at 507; Dillon, 596 F.3d at 266. The courts have developed an extensive body of law addressing the various circumstances that render grievance procedures unavailable within the meaning of the statute. See, e.g., Days v. Johnson, 322 F.3d 863, 868 (5th Cir.2003) (per curiam) (remedies unavailable because physical injury precluded timely grievance); Aceves v. Swanson, 75 Fed.Appx. 295, 296 (5th Cir.2003) (unpublished) (remedies unavailable because prison staff refused to provide grievance form); Allard v. Anderson, 260 Fed.Appx. 711, 714-15 (5th Cir.2007) (unpublished) (remedies unavailable because inmate didn’t discover injuries until after he left jail). Here, Davis testifies that he was unaware of the second step of the jail’s grievance process. He further testifies that when he asked jail staff whether the grievance process had a second step, he was told that it didn’t. There are two oft-applied and well-established rules of unavailability that are applicable to these facts. First, courts may not deem grievance procedures unavailable merely because an inmate was ignorant of them, so long as the inmate had a fair, reasonable opportunity to apprise himself of the procedures. E.g., Leggett, 608 Fed.Appx. at 191 (“[E]ven if Leggett was subjectively unaware of the procedures, the record sets out the substance of those procedures and indicates that the information was available to Leggett.”); Plaisance v. Cain, 374 Fed.Appx. 560, 561 (5th Cir.2010) (unpublished) (“Plaisance’s ignorance of the law does not relieve him of his obligation to comply with procedural requirements.”). Here, undisputed evidence shows that the jail’s grievance procedures are published in an inmate handbook, which is in the record, and explained on jail television, and Davis does not contend that any circumstances precluded him from accessing either source. Therefore, his ignorance of the grievance procedures, without more, is no basis to deem them unavailable. The second relevant rule, however, provides a contrary result here, viz.: Grievance procedures are unavailable to an inmate if the correctional facility’s staff misled the inmate as to the existence or rules of the grievance process so as to cause the" }, { "docid": "22795836", "title": "", "text": "1171. The majority’s de novo review (in an effort to conclude otherwise) is inconsistent with governing law, the majority’s own framework, and conflicts even with Albino’s view of the law and facts. Albino never once argued that Baca failed to satisfy his burden, arguing rather that he had satisfied his own burden of showing how the procedures were effectively unavailable. IL The majority shoulders Baca with production of evidence never before required in proving failure to exhaust administrative remedies, focusing on the lack of evidence confronting Albino’s testimony that the Jail never informed him of administrative remedies. Maj. op. at 1175 (“[I]n-mates were not even told of the existence of the Manual.”); id. at 1175 (“[TJhere is nothing in Deputy Kelley’s statement indicating that inmates are told that a complaint must be in writing.”); id. at 1176 (“Staff members never told him that complaint forms were ‘available for any inmate who requests them.’ ”); id. at 1177 (“Nor was Albino told that he could write a complaint on an ordinary piece of paper and hand it to one of the deputies.”) (emphasis added in each). Our prior prisoner exhaustion cases required jail officials to prove that they did not “hide the ball” from defendants. See, e.g., Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir.2010) (“[Ijmproper screening of an inmate’s administrative grievances renders administrative remedies ‘effectively unavailable’ such that exhaustion is not required under the PLRA.”); Nunez v. Duncan> 591 F.3d 1217, 1224 (9th Cir.2010) (excusing inmate’s failure to exhaust, because “he took reasonable and appropriate steps to exhaust his ... claim and was precluded from exhausting, not through his own fault but by the Warden’s mistake”); Mar ella v. Terhune, 568 F.3d 1024, 1027 (9th Cir.2009) (per curiam) (excusing inmate’s failure to exhaust, because he pursued some relief but was informed by prison personnel that no remedies were available). Today, the majority requires jail officials prove that, not only did they not hinder a prisoner’s access to administrative remedies, but also that they informed the prisoner of them. What comes in the next case to excuse a sympathetic plaintiff?" }, { "docid": "19628633", "title": "", "text": "126 S.Ct. 2378 (opinion concurring in judgment). Though that statutory term does not encompass \"freewheeling\" exceptions for any \" 'special circumstanc[e],' \" ante, at 1855, it does include administrative law's \"well-established exceptions to exhaustion.\" Woodford, supra, at 103, 126 S.Ct. 2378 (opinion of BREYER, J.). I believe that such exceptions, though not necessary to the Court's disposition of this case, may nevertheless apply where appropriate. We note that our adherence to the PLRA's text runs both ways: The same principle applies regardless of whether it benefits the inmate or the prison. We have thus overturned judicial rulings that imposed extra-statutory limitations on a prisoner's capacity to sue-reversing, for example, decisions that required an inmate to demonstrate exhaustion in his complaint, permitted suit against only defendants named in the administrative grievance, and dismissed an entire action because of a single unexhausted claim. See Jones v. Bock, 549 U.S. 199, 203, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). \"[T]hese rules,\" we explained, \"are not required by the PLRA,\" and \"crafting and imposing them exceeds the proper limits on the judicial role.\" Ibid. Of course, an exhaustion provision with a different text and history from § 1997e(a) might be best read to give judges the leeway to create exceptions or to itself incorporate standard administrative-law exceptions. See 2 R. Pierce, Administrative Law Treatise § 15.3, p. 1245 (5th ed. 2010). The question in all cases is one of statutory construction, which must be resolved using ordinary interpretive techniques. See, e.g., Davis v. Hernandez, 798 F.3d 290, 295 (C.A.5 2015) (\"Grievance procedures are unavailable ... if the correctional facility's staff misled the inmate as to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust such process\" (emphasis deleted)); Schultz v. Pugh, 728 F.3d 619, 620 (C.A.7 2013) (\"A remedy is not available, therefore, to a prisoner prevented by threats or other intimidation by prison personnel from seeking an administrative remedy\"); Pavey v. Conley, 663 F.3d 899, 906 (C.A.7 2011) (\"[I]f prison officials misled [a prisoner] into thinking that ... he had done all he needed" }, { "docid": "22795807", "title": "", "text": "unobtainable,-unduly prolonged, inadequate, or obviously futile.”). However, as required by Jones, the ultimate burden of proof remains with the defendant. Our sister circuits generally agree with this description of the respective burdens. For example, in Westefer v. Snyder, 422 F.3d 570 (7th Cir.2005)> the Seventh Circuit wrote: [A]s this case comes to us, we find the record hopelessly unclear ... whether any administrative remedy remained open for the prisoners to challenge their transfers through \" the grievance process .... IDOC failed to meet its burden of proving that [the prisoners] failed to exhaust an available administrative remedy...'. Id. at 580 (internal quotation marks omitted). In Tuckel v. Grover, 660 F-3d 1249 (10th Cir.2011), the Tenth Circuit similarly put the burden on defendants to prove that the prisoner did not use existing and generally available administrative remedies. Once that was proved, however, “the onus [fell] on the plaintiff to show that [these] remedies were unavailable to him as a result of intimidation by prison officials.” Id. at 1254; see also Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir.2008); Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001). We have considered in several PLRA cases whether an administrative remedy was “available.” In Nunez v. Duncan, 591 F.3d 1217 (9th Cir.2010), we held that where a prison warden incorrectly implied that an inmate needed access to a nearly unobtainable . prison policy in order to bring a timely administrative appeal, “the Warden’s mistake rendered Nunez’s administrative remedies effectively unavailable.” Id. at 1226. In Sapp v. Kimbrell, 623 F.3d 813 (9th Cir.2010), we held that where prison officials declined to reach the merits of a particular grievance “for reasons inconsistent with or unsupported by applicable regulations,” administrative remedies were “effectively unavailable.” Id. at 823-24. In Marella v. Terhune, 568 F.3d 1024 (9th Cir.2009) (per curiam), we reversed a district court’s dismissal of a PLRA case for failure to exhaust because the inmate did not have access to the necessary grievance forms within the prison’s time limits for filing a grievance. Id. at 1027-28. We also noted that Marella was not required to" }, { "docid": "22795808", "title": "", "text": "1082 (11th Cir.2008); Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001). We have considered in several PLRA cases whether an administrative remedy was “available.” In Nunez v. Duncan, 591 F.3d 1217 (9th Cir.2010), we held that where a prison warden incorrectly implied that an inmate needed access to a nearly unobtainable . prison policy in order to bring a timely administrative appeal, “the Warden’s mistake rendered Nunez’s administrative remedies effectively unavailable.” Id. at 1226. In Sapp v. Kimbrell, 623 F.3d 813 (9th Cir.2010), we held that where prison officials declined to reach the merits of a particular grievance “for reasons inconsistent with or unsupported by applicable regulations,” administrative remedies were “effectively unavailable.” Id. at 823-24. In Marella v. Terhune, 568 F.3d 1024 (9th Cir.2009) (per curiam), we reversed a district court’s dismissal of a PLRA case for failure to exhaust because the inmate did not have access to the necessary grievance forms within the prison’s time limits for filing a grievance. Id. at 1027-28. We also noted that Marella was not required to exhaust a remedy that he had been reliably informed was not available to him. Id. at 1027. In the case now before us, defendants conducted all the discovery that they considered necessary, including taking Albino’s deposition. They then moved for summary judgment, even though not required to do so under our then-governing precedent, contending that Albino failed to exhaust available administrative remedies. In the alternative, if Albino had successfully exhausted, they contended that Albino’s claims failed on the merits. The magistrate judge recommended, and the district court granted, summary judgment to the defendants on the issue of exhaustion. The district court did not reach the merits of Albino’s claims. We hold that the district court erred in granting summary judgment to defendants on the issue of exhaustion. We further hold that Albino is entitled to summary judgment on that issue. We discuss in a moment our reasons for so holding, but we first address the contention of our dissenting colleagues that we have improperly “ignore[d] the ‘clearly erroneous’ standard of review in reviewing the district" }, { "docid": "20819227", "title": "", "text": "of section 504.870(a)(4), which required Roberts, so far as his claim against Davis (or anyone else at Big Muddy) was concerned, to bypass all grievance officers and go directly to the Administrative Review Board, even though ordinarily the grievance procedure begins, as prisoners must know, with a complaint to a grievance officer. We have searched for publicly available material explaining in terms intelligible to lay persons how to proceed in the situation in which Roberts found himself, and have not found any; nor is there any in the record. Although “when administrative procedures are clearly laid out ... an inmate must comply with them in order to exhaust his remedies,” Pavey v. Conley, 663 F.3d 899, 905 (7th Cir.2011), prisoners must “be informed of the grievance procedure at the admitting facility.” § 504.810(d). Roberts filed his grievance against Davis at Pinck-neyville, and, as we’re about to see, it was likely to be interpreted as concerning mistreatment there rather than at Big Muddy, and in that event the grievance officer would not have told him to refile the grievance with the Administrative Review Board — and so far as we know did not tell him that. The grievance has a fatal defect, but it lies elsewhere; it lies in the absence of anything in it to indicate that Davis was the target. It’s not merely that Roberts didn’t name her; a grievant is not required to know the name of the prison employee whom he’s complaining about — often he will not know the employee’s name — and so it is enough if he “include[s] as much descriptive information about the individual as possible,” § 504.810(b). Roberts had failed to do this in his grievance against Alvis. He failed in spades to do so in the grievance that he now says was against Davis. For it states at the outset that it is intended “to express opposition [to] and disagreement” with a document issued by a doctor at Pinckneyville named Obadina. The Pinckneyville grievance officer would naturally have inferred that Roberts was complaining about the medical treatment he was receiving there." }, { "docid": "5511768", "title": "", "text": "detail, reviewed the testimony and documentary evidence, made credibility determinations to which we must defer, and rendered its decision. i. Availability of Administrative Remedies Although the availability of administrative remedies to a prisoner is a question of law, Brown v. Croak, 312 F.3d 109, 111 (3d Cir.2002) (citing Ray, 285 F.3d at 291), it necessarily involves a factual inquiry. See Dillon, 596 F.3d at 266 (“[W]hile it is a question of law whether administrative remedies qualify as being ‘available’ under 42 U.S.C. § 1997e(a), availability may • sometimes turn on questions' of fact.”). “ ‘Available’ means ‘capable of use; at hand.’ ” Brown, 312 F.3d at 113 (citing Webster’s II, New Riverside University Dictionary 141 (1994 ed.)). Remedies that are not reasonably communicated to inmates may be considered unavailable for exhaustion purposes. Id.; see Dillon, 596 F.3d at 268 (recognizing “the importance of ensuring that inmates have avenues for discovering the procedural rules governing their grievances”); Goebert v. Lee Cnty., 510 F.3d 1312, 1323 (11th Cir.2007) (“That which is unknown and unknowable is unavailable .... ”). The District Court found that Small received an inmate handbook (which, as we have noted, outlines CCCF’s grievance procedures) upon his entry to the prison, or shortly thereafter, and, in any event, that he was aware of those procedures. We agree that, wholly aside from whether Small in fact was given a handbook, there was ample evidence that he nonetheless knew of, and had access to, CCCF’s grievance procedures and, thus, that administrative remedies were “available” to him. Although Small continues to contend he did not receive a handbook until 2007, and therefore was unaware until then of the grievance procedures, we cannot help but observe that, among other things, he properly filed his first grievance form, fully compliant with those procedures, on August 30, 2004. Indeed, Small testified that by that time he knew of the procedures and the need to file a foripal. grievance. He also testified that although he had access to the law library, he never requested a copy of the handbook. Finally, although he claims that prison officials prevented" }, { "docid": "398761", "title": "", "text": "would have been given to a grievance officer. Such a letter would still have failed to conform to the procedural requirements of the jail’s policy and could have been thrown out on that basis. In effect, the district court reversed the summary judgment standard by viewing the superintendent’s statement in the light least favorable to the non-moving party. But even if the affidavit had actually said that a late grievance from King would have been considered on the merits, there is a still more fundamental problem with the defendant’s’ argument. The jail detailed its grievance policy in the detainee handbook. To the extent the policy was available to King, he was required to follow its specific procedures. Woodford, 548 U.S. at 93, 126 S.Ct. 2378. Now that a prisoner has sued them, though, the defendants cannot defeat the suit by retroactively amending the policy with a new rule or policy that says, in effect, “we would have been reasonable.” Nothing in the record suggests, but more important, nothing in the jail’s stated policy shows beyond reasonable dispute, that the jail would have or could have accepted a late submission or otherwise relaxed its stated rules. See Dale, 376 F.3d at 656 (vacating summary judgment; defendants could not argue that. they would have accepted prisoner grievance even if not filed on the specific form required by administrative policy). Prisoners are required to exhaust grievance procedures they have been told about, but not procedures they have not been told about. See Pavey v. Conley, 663 F.3d 899, 906 (7th Cir.2011); Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir.2005); Carroll v. Yates, 362 F.3d 984, 985 (7th Cir.2004). They are not required to divine the availability of other procedures. If authorities could change their grievance rules once litigation began or simply keep prisoners in the dark about the real rules, they could always defeat prisoner suits by announcing impossible procedural hurdles beforehand and then, when they are sued, explaining that they would have waived the requirements for the plaintiff. See Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir.2006) (reversing summary judgment" }, { "docid": "22343010", "title": "", "text": "in the unavailability of administrative remedies at Allen. Section 325(G)(8) provides that “if [an inmate] files a request after transfer on an action taken by the sending institution, the sending institution will complete the processing through the first step.” La. Admin. Code tit. 22, § 325(G)(8). Since Jena closed after Dillon’s transfer, he asserts Jena could not “complete the processing” of his grievance, and therefore there was no administrative remedy available to him at Allen for the abuse he suffered at Jena. Second, Dillon argues that his failure to exhaust should be excused because Captain Wheaton and inmate counsel Dennis Coleman allegedly told him that he could not file a grievance at Allen for abuse suffered at Jena. While Dillon styles this as an estoppel argument, these statements by Wheaton and Coleman could conceivably impact whether any remedies were “available” to Dillon under 42 U.S.C. § 1997e(a). See Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir.2002) (concluding that statements by prison officials about administrative remedy process may render remedies unavailable). The district court rejected Dillon’s assertion that these statements excuse exhaustion, relying on Lyon v. Vande Krol, where the Eighth Circuit held that a prisoner’s mistaken “subjective” understanding of a grievance procedure is irrelevant for determining whether remedies are actually available. 305 F.3d 806, 809 (8th Cir.2002). The district court also found that allowing Dillon to rely on Wheaton’s and Coleman’s statements would be inconsistent with this circuit’s “strict” approach to the PLRA’s exhaustion requirement. See Days, 322 F.3d at 866 (citing Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir.2001) and Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001)). Under our strict approach, we have found that mere “substantial compliance” with administrative remedy procedures does not satisfy exhaustion; instead, we have required prisoners to exhaust available remedies properly. See Wright, 260 F.3d at 358; Spurlock, 260 F.3d at 499. However, our strict approach does not absolutely foreclose the possibility that prison officials’ statements concerning administrative remedies can render such remedies unavailable. We have long recognized the importance of ensuring that inmates have avenues for discovering the procedural" }, { "docid": "22154235", "title": "", "text": "but concluded that we did not need to decide whether they were available because Ngo could not satisfy them in any event: “Ngo hasn’t shown that administrative procedures were unavailable, that prison officials obstructed his attempt to exhaust or that he was prevented from exhausting because procedures for processing grievances weren’t followed.” Id. Several of our sister circuits have allowed exceptions to the PLRA’s exhaustion requirement in the wake of the Court’s decision in Ngo. For example, in Kaba v. Stepp, 458 F.3d 678, 684-86 (7th Cir.2006), the Seventh Circuit remanded to the district court to determine whether prison officials’ threats had effectively prevented the prisoner from exhausting his administrative remedies. The court wrote approvingly of a decision in which the Third Circuit had “held that administrative remedies were unavailable where the prison officials erroneously told the prisoner that he must wait until the investigation was complete before filing a grievance.” Id. at 684 (citing Brown v. Croak, 312 F.3d 109, 111-12 (3d Cir.2002)). In Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir.2008), the Eleventh Circuit held that a prisoner who had been threatened with retaliation by prison officials if he filed a grievance was excused from complying with the PLRA’s exhaustion requirements. The court wrote: “[T]o be ‘available’ a remedy must be ‘capable of use for the accomplishment of [its] purpose.’ Remedies that rational inmates cannot be expected to use are not capable of accomplishing their purposes and so are not available.” Id. at 1084 (citation omitted). In Macias v. Zenk, 495 F.3d 37, 45 (2d Cir.2007), the Second Circuit remanded for a determination whether a prison official’s threats had deterred the prisoner from exhausting his administrative remedies, rendering those remedies effectively unavailable, and whether the defendants should therefore be estopped from asserting lack of exhaustion as a defense. b. Application to Nunez We hold that Nunez’s failure to timely exhaust his administrative remedies is excused because he took reasonable and appropriate steps to exhaust his Fourth Amendment claim and was precluded from exhausting, not through his own fault but by the Warden’s mistake. Nunez took various steps" }, { "docid": "22154252", "title": "", "text": "(“[A] prisoner does not exhaust all available remedies simply by failing to follow the required steps so that remedies that once were available to him no longer are.”); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.2006) (“[Wjhen the prisoner causes the unavailability of the grievance process by simply not filing a grievance in a timely manner, the process is not unavailable but rather forfeited.”) Where prison officials have effectively prevented a prisoner from using the available procedures, for example by literally denying the prisoner access to the process, falsely claiming that the prisoner could not use the process, or threatening reprisals if the prisoner used the process, courts have held that administrative remedies were not “available” for purposes of the PLRA. See, e.g., Turner v. Burnside, 541 F.3d 1077, 1081, 1085 (11th Cir.2008) (holding that administrative remedies were unavailable where the warden tore up the prisoner’s initial grievance in front of the prisoner and threatened to transfer the prisoner away from his family if the prisoner continued to file such grievances); Kaba, 458 F.3d at 686 (holding that administrative remedies were not available where the prison official warned the prisoner not to file a grievance and successfully pressured other inmates to assault the prisoner in order to prevent the prisoner from pursuing the grievance); Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir.2002) (holding that a complaint was sufficient to survive a motion to dismiss for failure to exhaust where prisoner alleged that prison officials told him he could not file a formal griev anee until the completion of an investigation, but failed to tell him when that event occurred); Miller v. Norris, 247 F.3d 736, 738, 740 (8th Cir.2001) (holding that the prisoner’s allegation and evidence that prison officials refused to mail the prisoner the required administrative forms was sufficient to raise an inference that he had exhausted available remedies); cf. Panaro v. City of N. Las Vegas, 432 F.3d 949, 952-53 (9th Cir.2005) (holding that pretrial detainee must allege that the detention center’s grievance process was “systematically unavailable to him”). Here, the prison’s clerical error created no" }, { "docid": "8540307", "title": "", "text": "are entitled to summary judgment on their exhaustion defense. See Cantwell, 788 F.3d at 507 & n. 1 (after concluding that the district court erred in failing to consider evidence, proceeding to appellate review of summary judgment based on the evidence); Leggett v. Lafayette, 608 Fed.Appx. 187, 189-90 (5th Cir.2015) (unpublished) (same). B. Under the Prison Litigation Reform Act, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Inmates need not exhaust all administrative remedies, however, but only those that are “available” to them. See, e.g., Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir.2010); Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir.2004); Brown v. Croak, 312 F.3d 109, 111 (3d Cir.2002); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001). Whenever defendants claim a failure to exhaust, they have the burden to prove that the plaintiff did not exhaust administrative remedies that were actually available to him. Cantwell, 788 F.3d at 507; Dillon, 596 F.3d at 266. The courts have developed an extensive body of law addressing the various circumstances that render grievance procedures unavailable within the meaning of the statute. See, e.g., Days v. Johnson, 322 F.3d 863, 868 (5th Cir.2003) (per curiam) (remedies unavailable because physical injury precluded timely grievance); Aceves v. Swanson, 75 Fed.Appx. 295, 296 (5th Cir.2003) (unpublished) (remedies unavailable because prison staff refused to provide grievance form); Allard v. Anderson, 260 Fed.Appx. 711, 714-15 (5th Cir.2007) (unpublished) (remedies unavailable because inmate didn’t discover injuries until after he left jail). Here, Davis testifies that he was unaware of the second step of the jail’s grievance process. He further testifies that when he asked jail staff whether the grievance process had a second step, he was told that it didn’t. There are two oft-applied and well-established rules of unavailability that are applicable to these facts. First, courts may not deem grievance procedures unavailable merely because an inmate was" } ]

[ { "docid": "11557353", "title": "", "text": "appropriate steps to ensure that judgment was not rendered without that information. Lafarge’s evidence was sufficient to establish that the costs it requested were all attributable to the defense of Lafarge and would have been incurred regardless of the involvement of non-insureds in the suit. We must therefore reject Hartford’s claims in these respects. We agree, however, with Hartford’s contention that it should not be liable for any defense costs incurred prior to the date Lafarge tendered the amended petition because the “voluntary payment” provision of the policy precludes liability for such pretender defense costs. As noted in the pre vious section, under Texas law, the duty to defend does not arise until a petition alleging a potentially covered claim is tendered to the insurer. Members Insurance Co. v. Branscum, 803 S.W.2d 462, 466-67 (Tex.App.—Dallas 1991, no writ). The cases on which the district court relied to support its determination that pre-tender costs were recoverable are inapposite. The terms of the policy are unambiguous and therefore must be enforced as written. Ranger Insurance Co. v. Estate of Mijne, 991 F.2d 240, 243 (5th Cir.1993); see also Northern Insurance Co. of New York v. Allied Mutual Insurance Co., 955 F.2d 1353, 1360 (9th Cir.) (noting that “California courts have consistently honored [voluntary payment] provisions, and will not require insurers to pay for voluntarily incurred pre-tender costs”), cert. denied, — U.S. —, 112 S.Ct. 3033, 120 L.Ed.2d 903 (1992). Accordingly, on remand, the district court should modify the judgment, reducing Hartford’s liability to reflect only those defense costs incurred after tender of the amended petition. As Hartford has waived its other arguments respecting the apportionment of costs, however, no other modification is necessary. III. Discovery of the Prior Settlement Agreement As noted previously, Hartford did not become Lafarge’s insurer until 1987; before that time, Nationwide Casualty Insurance Company (Nationwide) was Lafarge’s primary insurer. In January 1992, Lafarge and Nationwide settled a number of coverage disputes related, inter alia, to the underlying litigation in this case. Hartford sought to compel Lafarge to answer its interrogatory requesting information on the amount of the settlement" } ]

[ { "docid": "6231798", "title": "", "text": "suit papers to his insurance agent early in the litigation; the agent admitted that he had met with the insured, who had mentioned some pending litigation but who never presented him with any paperwork. For purposes of deciding the insured's motion for summary judgment, the court assumed the agent’s testimony to be accurate. JORDAN, Circuit Judge, concurring in the judgment. The Court’s construction of Florida’s Claims Administration Statute, Fla. Stat. § 627.426, makes sense to me, but it runs counter to the Fourth District’s decision in Nationwide Mut. Fire Ins. Co. v. Beville, 825 So.2d 999,1003-04 (Fla. 4th DCA 2002) (holding that insured’s failure to provide proper notice of claim constituted a “coverage defense” under the CAS, and that insurer was required to pay for insured’s pre-notice expenses because it did not comply with the CAS). Our cases say that we are bound to follow a decision by a Florida intermediate appellate court unless there is a persuasive indication that the Florida Supreme Court would decide the issue differently, see, e.g., McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002), and I do not think Beville is distinguishable. I would resolve the case solely on the alternative rationale articulated by the Court at the end of the majority opinion. Section IV(2)(d) of the policy provides that “[n]o insured will, except at that insured’s own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without [Travelers’] consent.” D.E. 52-1 at 27 (emphasis added). The phrase “except at that insured’s own cost” makes this policy language tantamount to a policy exclusion. As I read it, this voluntary payments provision means that the insured is responsible for the costs it incurs (other than for first aid) without the insurer’s consent and that no coverage or indemnification is available for such costs. See Am. Reliance Ins. Co. v. Perez, 712 So.2d 1211, 1212-13 (Fla. 3d DCA 1998) (holding that the same voluntary payments provision precluded coverage where the insured settled a claim without the insurer’s consent); Rolyn Companies, Inc. v. R & J Sales of" }, { "docid": "7444335", "title": "", "text": "(Tex.1981). An insurer’s duty to defend and its duty to indemnify are distinct and separate. Farmers Tex. County Mut. Ins. v. Griffin, 955 S.W.2d 81, 82 (Tex.1997); E&L Chipping Co. v. Hanover Ins. Co., 962 S.W.2d 272, 274 (Tex.App.—Beaumont 1998, no pet.); Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 636 (Tex.1973). The duty to defend is based upon the factual allegations in the pleadings and the policy language itself. See American Nat. Gen. Ins. Co. v. Ryan, 274 F.3d 319 (5th Cir.2001); American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 847-48 (Tex.1994). The duty to indemnify arises from the actual facts that are developed to establish liability in the underlying suit. See Trinity Univ. Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex.1997) (citing Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 25 (Tex.1965)). An insurer may have a duty to defend but, eventually, not to indemnify. Griffin, 955 S.W.2d at 82. An insured has a duty to cooperate with its insurer in the defense of claims for which the insurer has a duty to defend. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 385 (Tex.1993). These “[cooperation clauses are intended to guarantee to insurers the right to prepare adequately their defense on questions of substantive liability.” Martin v. Travelers Indem. Co., 450 F.2d 542, 553 (5th Cir.1971). To breach its duty to cooperate, an insured’s conduct must materially prejudice the insurer’s ability to defense the lawsuit on the insured’s behalf. Id. at 553; Hernandez, 875 S.W.2d at 692-93; State Farm, 858 S.W.2d at 385; Oil Ass’n v. Royal Indem. Co., 519 S.W.2d 148, 150 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref'd n.r.e.). However, an insurer who first “wrongfully refuses to defend” an insured is precluded from insisting on the insured’s compliance with other policy conditions. See Employers Cas. Co. v. Block, 744 S.W.2d 940, 943 (Tex.1988); St. Paul Ins. Co. v. Rahn, 641 S.W.2d 276, 278 (Tex.App.—Corpus Christi 1982, no writ); Enserch v. Shand Moraban & Co., Inc., 952 F.2d 1485, 1496 n. 17 (5th Cir.1992) (applying Texas law)." }, { "docid": "11557344", "title": "", "text": "the policy definition of “named insured” plainly does not include them, but includes only Lafarge itself. Such constructions are to be avoided. Liberty Mutual Insurance Co. v. American Employers Insurance Co., 556 S.W.2d 242, 245 (Tex.1977). We thus conclude that Hartford had no duty to defend with respect to the surety claim against Lafarge. As this was the only claim against Lafarge alleged in the original petition, Hartford could not have breached any duty to Lafarge by refusing to defend it against that claim: “[T]he duty to defend is determined by examining the latest, and only the latest, amended pleadings. A complaint which does not initially state a cause of action under the policy, and so does not create a duty to defend, may be amended so as to give rise to such a duty.... In [this] instance, the insurer may properly refuse to defend before the amended complaint is filed.” Rhodes, 719 F.2d at 119. See also Steel Erection Co. v. Travelers Indemnity Co., 392 S.W.2d 713, 715-16 (Tex.Civ.App.—San Antonio 1965, writ ref'd n.r.e.) (insurer liable only for that portion of defense costs incurred after plaintiff amended petition to state a covered claim). As discussed above, however, the amended complaint, which included allegations of La-farge’s own negligence, did trigger a duty to defend. See Rhodes, 719 F.2d at 119. This duty Hartford acknowledged, subject to a reservation of its right to deny coverage for any claims it might determine to be outside the policy. Such was its prerogative, as it was Lafarge’s to refuse such a conditional tender of defense and proceed on its own. Id. at 120. In these circumstances, Hartford remains obligated for that portion of attorneys’ fees incurred from the time the duty to defend arose, i.e., after the amended complaint was tendered to it. See id. On remand, the district court should determine what portion of defense costs accrued after the date the amended petition was tendered to Hartford. B. Failure to cooperate as excusing duty to defend. Hartford further argues that, if it did have a duty to defend, as we have determined it" }, { "docid": "15307791", "title": "", "text": "at 18-19.) Penn National cites no North Carolina law in support of its argument, and this court has found none. Looking to the language in the policy, the court notes that there is no contractual provision requiring the insurer to pay for pre-notification legal fees. In addition, the Penn National policy states that an insured must “see to it that [the insurer] [is] notified promptly of an ‘occurrence’ which may result in a claim.” (Penn Nat’l. Policy, Sec. IV.2(a).) The policy also states that the insured must assure that the insurer is given “prompt written notice” of any claim or suit made against the insured. (Penn Nat’l. Policy, Sec. IV.2(b).) Further, the insured must “immediately” send copies of any demands, notices or summons in connection with a claim or suit against the insured. (Penn Nat’l. Policy, Sec. IV.2(c)(l).) In O’Bnen Family Trust v. Glen Falls Insurance Co., 218 Ga.App. 379, 461 S.E.2d 311, 313 (1995), the appellate court held that where the insurance policy did not provide for the payment defense costs incurred by the insured prior to tendering its defense in the underlying action to the insurer, the policy did not obligate the insurer to pay for such pre-tender defense costs because “[s]uch a construction would render contractual terms necessary to trigger [the insurer’s] performance under the policy meaningless.” A similar argument can be made with respect to the notification provisions of the Penn National policy. Although this court has found no North Carolina cases on point, given the absence of contractual language requiring the insurer to pay for pre-notification legal expenses, and the fact that North Carolina’s courts have long recognized the validity of notice provisions in insurance contracts, see South Carolina Ins. Co. v. Hallmark Enters., Inc., 88 N.C.App. 642, 645, 364 S.E.2d 678, 680, disc. review denied, 322 N.C. 482, 370 S.E.2d 228 (1988), this court is not inclined to find that Penn National must pay for those legal fees incurred by the Plaintiff prior to giving notice to Penn National. Cf. Peerless Ins. Co. v. Strother, 765 F.Supp. 866, 869 (E.D.N.C.1990) (“The duty of an" }, { "docid": "15307790", "title": "", "text": "court’s coverage determination, the Plaintiff cannot recover those defense costs incurred prior to its notifying Penn National of Farm Bureau’s claims. (See FD 21 at 18.) Penn National points to the following language in its policy: SECTION TV — COMMERCIAL GENERAL LIABILITY CONDITIONS ‡ ‡ ‡ ‡ ‡ ‡ 2. Duties in the Event of Occurrence, Claim or Suit. * * * * * He d. No insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without [the insurer’s] consent. (Penn Nat’l. Policy, Sec. IV(2)(d).) Penn National argues that “[b]y voluntarily undertaking to defend the Farm Bureau claim without notice and without Penn National’s consent, including participation in the arbitration, Vick Construction violated the express conditions of the policy.” (FD 21 at 18.) Penn National further states that “[hjaving breached the policy conditions, Vick Construction may not recover any attorneys fees or other expenses related to defense of the Farm Bureau claim prior to its notice to Pennsylvania National.” (FD 21 at 18-19.) Penn National cites no North Carolina law in support of its argument, and this court has found none. Looking to the language in the policy, the court notes that there is no contractual provision requiring the insurer to pay for pre-notification legal fees. In addition, the Penn National policy states that an insured must “see to it that [the insurer] [is] notified promptly of an ‘occurrence’ which may result in a claim.” (Penn Nat’l. Policy, Sec. IV.2(a).) The policy also states that the insured must assure that the insurer is given “prompt written notice” of any claim or suit made against the insured. (Penn Nat’l. Policy, Sec. IV.2(b).) Further, the insured must “immediately” send copies of any demands, notices or summons in connection with a claim or suit against the insured. (Penn Nat’l. Policy, Sec. IV.2(c)(l).) In O’Bnen Family Trust v. Glen Falls Insurance Co., 218 Ga.App. 379, 461 S.E.2d 311, 313 (1995), the appellate court held that where the insurance policy did not provide for the payment defense costs incurred by the" }, { "docid": "6231800", "title": "", "text": "Texas, Inc., 412 Fed.Appx. 252, 255 (11th Cir. 2011) (concluding, under Florida law, that the same voluntary payments provision precluded the insured from recovering repair costs it incurred before seeking consent from the insurer to perform repairs). Accord West Bend Mu. Ins. C. v. Arbor Homes LLC, 703 F.3d 1092, 1096-97 (7th Cir. 2013) (holding, under Indiana law, that the same voluntary payments provision precluded coverage where the insured settled a claim without the insurer’s consent); Lafarge Corp. v. Hartford Cas. Ins. Co., 61 F.3d 389, 399-400 (5th Cir. 1995) (concluding, under Texas law, that a voluntary payments provision precluded the insurer from being liable for defense costs incurred by the insured prior to tender of claim); Insua v. Scottsdale Ins. Co., 104 Cal.App.4th 737, 743-44, 129 Cal.Rptr.2d 138 (2002) (ruling, under California law, that the same voluntary payments provision typically “bars reimbursement for pre-tender expenses based on the reason ing that until the defense is tendered ... there is no duty to defend”) (internal quotation marks omitted). This is the majority rule. See 8 New Appleman on Insurance Law Library Edition § 20.04(3)(b) (LexisNexis 2016) (recognizing, but criticizing, the majority rule). And because this voluntary payments provision constitutes a policy exclusion, the CAS does not apply. See AIU Ins, Co. v. Bloch Marina Inv., Inc., 544 So.2d 998,1000 (Fla. 1989)." }, { "docid": "13520158", "title": "", "text": "The summary judgment was proper if the pleadings and evidence show that there was no genuine issue as to any material fact and that National Union was entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The interpretation of an insurance policy is a question of law that we review de novo. Allstate Ins. Co. v. Disability Servs. of the Southwest, Inc., 400 F.3d 260, 263 (5th Cir.2005). The parties agree that Texas substantive law applies in this diversity case. Under Texas law, insurance polices are construed according to the same rules of construction used to interpret contracts. Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex.2008). The court’s primary concern is effectuating the parties’ expressed intent. Id. If an insurance policy uses unambiguous language, it must be enforced as written. Id. A policy’s exclusions and limitations are construed narrowly to avoid exclusion of coverage. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Willis, 296 F.3d 336, 339 (5th Cir.2002) (citing Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984)). The insured bears the burden to prove that his claim is covered by the policy, and the insurer bears the burden to prove that an exclusion applies. Fiess v. State Farm Lloyds, 392 F.3d 802, 807 (5th Cir.2004) (applying Texas law). Stanley suffered a loss in the colloquial sense that the bankruptcy court required him to pay a judgment. However, the critical issue here is whether the repayment of the amounts received, which we have concluded were avoidable fraudulent transfers, constitute an insurable “Loss” under the Policy. A definition of the relevant term is in the Policy. “Loss” means damages, settlements, judgments (including pre/post-judgement interest on a covered judgment), Defense Cost and Crisis Loss; however, “Loss” (other than Defense Costs) shall not include ... (6) matters which may be deemed uninsurable under the law pursuant to which this policy shall be construed. This language is unambiguous and will be enforced as written. Don’s Bldg. Supply, 267" }, { "docid": "7521161", "title": "", "text": "to defend, quoting the following language from the policy: We agree to cover your legal liability for damages because of bodily injury ... to any person arising out of sexual misconduct which occurs during the policy period. We shall have the right and duty to investigate any claim ... and to defend any suit brought against you seeking damages, even if the allegations of the suit are groundless, false or fraudulent. ... GuideOne Elite Ins. Co. v. Fielder Road Babtist Church, 197 S.W.3d 305, 306 (Tex.2006). The duty to defend stands in contrast to the insurer’s subsequent duty to indemnify for defense costs incurred by the insured. Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex.2004) (“The duty to defend and duty to indemnify are distinct and separate duties.”) (quotes and citations omitted). “Although these duties are created by contract, they are rarely coextensive,” GuideOne Elite Ins. Co., 197 S.W.3d at 310, with the duty to defend frequently adhering regardless of the merits of the third party suit and the duty to indemnify adhering only if the third party suit proves meritorious. See, e.g., id. Moreover, the duties are invoked in different circumstances: “A plaintiffs factual allegations that potentially support a covered claim is all that is needed to invoke the insurer’s duty to defend, whereas, the facts actually established in the underlying suit control the duty to indemnify.” Id. The distinction is important because Texas courts, applying the “eight corners” rule, limit the evidence under consideration to the third party complaint and the policy when determining coverage for duty to defend claims: The eight-corners rule provides that when an insured is sued by a third party, the liability insurer is to determine its duty to defend solely from the terms of the policy and the pleadings of the third-party claimant. Resort to evidence outside the four corners of these two documents is generally prohibited. Id.; see also Pa. Pulp & Paper Co. v. Nationwide Mut. Ins., 100 S.W.3d 566, 570 (Tex.App.2003) (“In analyzing insurance-coverage disputes of this nature, [Texas courts] conduct a two-part" }, { "docid": "4875173", "title": "", "text": "necessarily bind us. Id. If the Supreme Court of Texas has not ruled on an issue before us, we must determine, to the best of our ability, what it would decide under the same circumstances. Id. Texas courts interpret insurance policies according to the rules of contractual construction. Int’l Ins. Co., 426 F.3d at 291 (citing Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998)). Texas courts give contractual terms “their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used them in a technical or different sense.” Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). Unambiguous contracts are enforced as written. Id. Whether or not a contract is ambiguous is a question of law for the court. Id. II. “Other Insurance” Where a liability covered by the Environmental policies is also covered by “other insurance,” Condition 8 prevents recovery unless the other insurance has been exhausted, in which ease the Environmental policies can serve as excess insurance. Condition 8 is triggered where “any injury, loss, damage, costs or expenses [are] recoverable under any other insurance insuring to the benefit of the Insured.” Thus, for Condition 8 to have been applicable in this case, (1) RSR must have had “other insurance” insuring to its benefit, and (2) RSR must have been able to recover under this other insurance for the same “injury, loss, damage, costs or expenses” it sought to recover from International. The district court held that RSR’s CGL policies were “other insurance” under which RSR successfully recovered for the full amount of its Harbor Island liabilities pursuant to its settlement agreements with the CGL insurers. Therefore, it concluded that Condition 8 of International’s Environmental policies barred any further recovery. RSR argues that the district court erred because its CGL policies were not “other insurance” within the meaning of Condition 8 for two major reasons. First, RSR argues that a payment pursuant to a settlement agreement is not “insurance” and therefore does not qualify as “other insurance” under the plain language of the policy. Second, it argues that, even if a" }, { "docid": "22903455", "title": "", "text": "38.001 will not preclude the applicability of that section in the award of attorney’s fees). AHAC also cites this court’s decisions in Utica Lloyds of Texas v. Mitchell, 138 F.3d 208, 210 (5th Cir.1998) and Travelers Indem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 772 (5th Cir.1999) to argue that United Space is precluded from attorney’s fees because it pled attorney’s fees under the Texas Declaratory Judgment Act (the “Texas Act”), Tex. Civ. Prac. & Rem.Code, section 37.009 (“section 37.009”). AHAC asserts that these cases held that the Texas Act could not be the basis for recovery of such fees in a diversity action. The holdings of these two cases do not support AHAC’s argument. In Utica Lloyds this court denied an insured’s request for attorney’s fees, not because it had pled section 37.009 instead of section 38.001, but because the court held that even if section 38.001 had been pled, the insurance company was exempted under section 38.006 from paying attorney’s fees. 138 F.3d at 210. Also, Travelers Indem. Co. is inapplicable because in that case the party seeking attorney’s fees did so through a declaratory judgment action, 166 F.3d at 772, while, by contrast, United Space’s award of attorney’s fees was placed before a jury. Furthermore, the Texas Supreme Court in Grapevine Excavation, Inc. v. Maryland Lloyds held that section 38.006 does not preclude the award of attorney’s fees unless there is another statute available other than section 38.001 in which an insured could recover attorney’s fees from an insurer. 35 S.W.3d 1, 5 (Tex.2000) (Insurance company, which was successfully sued by an insured for refusing to defend a third-party suit under the terms of a general liability policy, was not entitled to a section 38.006 exemption to pay attorney’s fees under section 38.001). Here, as in Grapevine Excavation, no other statutes exist under which attorney’s fees would be available to an insured who successfully sues its insurer for breach of a general liability policy other than section 38.001. While section 38.003 does provide a rebuttable presumption that the fees requested are reasonable, it also states that" }, { "docid": "6231792", "title": "", "text": "a defense to coverage that otherwise exists. Indeed, in Block Marina, the Florida Supreme Court made it clear that an insurer’s violation of the CAS does not entitle an insured to coverage of matters that are excluded by the policy. Beville addressed a coverage defense, which was the insurer’s assertion of a general policy provision requiring an insured to provide prompt notice of a lawsuit to its insurer. An insured’s non-compliance with that provision gives an insurer a defense to coverage that otherwise exists. Beville never held, nor could it, that an insured was entitled to coverage on matters that are expressly excluded by the policy. And as we have earlier explained, Travelers is not relying on a coverage defense; it is relying on an exclusion from coverage contained in the policy provision that expressly excludes reimbursement for expenses that an insured unilaterally incurs without the prior consent of the insurer. That provision states that “no insured will, except at that insured’s own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.” This provision clearly excludes any voluntary payments made by an insured without the insurer’s permission. It is an exclusion from coverage, and there is no dispute that EmbroidMe disregarded it. Because the CAS cannot resurrect coverage that has been explicitly excluded and because the provision at issue here constitutes such an exclusion, Beville is not controlling and EmbroidMe is not entitled to reimbursement of legal expenses that it incurred without the permission of Travelers. ■CONCLUSION We conclude that the CAS does not apply to prevent Travelers from enforcing a provision of the liability insurance policy that excludes EmbroidMe from obtaining reimbursement for attorney’s fees it chose to incur prior to requesting Travelers to defend and indemnify it in its pending litigation. We therefore AFFIRM the district court. . In documents filed in the district court, EmbroidMe claimed to have expended $417,989.84 in pre-tender legal fees. The figure in the text above comes from briefs Em-broidMe filed in this Court, and is therefore the figure we use for" }, { "docid": "6231793", "title": "", "text": "other than for first aid, without our consent.” This provision clearly excludes any voluntary payments made by an insured without the insurer’s permission. It is an exclusion from coverage, and there is no dispute that EmbroidMe disregarded it. Because the CAS cannot resurrect coverage that has been explicitly excluded and because the provision at issue here constitutes such an exclusion, Beville is not controlling and EmbroidMe is not entitled to reimbursement of legal expenses that it incurred without the permission of Travelers. ■CONCLUSION We conclude that the CAS does not apply to prevent Travelers from enforcing a provision of the liability insurance policy that excludes EmbroidMe from obtaining reimbursement for attorney’s fees it chose to incur prior to requesting Travelers to defend and indemnify it in its pending litigation. We therefore AFFIRM the district court. . In documents filed in the district court, EmbroidMe claimed to have expended $417,989.84 in pre-tender legal fees. The figure in the text above comes from briefs Em-broidMe filed in this Court, and is therefore the figure we use for purposes of this opinion. , According to EmbroidMe, Travelers paid out approximately $300,000 in post-tender attorney’s fees and costs between October 2011, when EmbroidMe first tendered the claim, and September 2012, which was shortly after EmbroidMe settled its litigation with JCW. . As to the parties’ appeals of discovery rulings made by a magistrate judge, the district court concluded that the magistrate judge’s order was neither clearly erroneous nor contrary to law, and affirmed it, denying all other remaining motions as moot. EmbroidMe has also appealed that ruling, but we need not address that issue given our affirmance of the district court's order granting summary judgment to Travelers, . Travelers contends that even had the policy not put EmbroidMe on notice that Travelers was not obliged to pay any expenses that EmbroidMe incurred without first clearing those expenses with Travelers, both Florida law and persuasive authority from other states hold that an insurer has no duty to pay pre-tender defense costs. Because we conclude that the policy here disallowed reimbursement of these pre-tender legal fees," }, { "docid": "6231799", "title": "", "text": "F.3d 1077, 1080 (11th Cir. 2002), and I do not think Beville is distinguishable. I would resolve the case solely on the alternative rationale articulated by the Court at the end of the majority opinion. Section IV(2)(d) of the policy provides that “[n]o insured will, except at that insured’s own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without [Travelers’] consent.” D.E. 52-1 at 27 (emphasis added). The phrase “except at that insured’s own cost” makes this policy language tantamount to a policy exclusion. As I read it, this voluntary payments provision means that the insured is responsible for the costs it incurs (other than for first aid) without the insurer’s consent and that no coverage or indemnification is available for such costs. See Am. Reliance Ins. Co. v. Perez, 712 So.2d 1211, 1212-13 (Fla. 3d DCA 1998) (holding that the same voluntary payments provision precluded coverage where the insured settled a claim without the insurer’s consent); Rolyn Companies, Inc. v. R & J Sales of Texas, Inc., 412 Fed.Appx. 252, 255 (11th Cir. 2011) (concluding, under Florida law, that the same voluntary payments provision precluded the insured from recovering repair costs it incurred before seeking consent from the insurer to perform repairs). Accord West Bend Mu. Ins. C. v. Arbor Homes LLC, 703 F.3d 1092, 1096-97 (7th Cir. 2013) (holding, under Indiana law, that the same voluntary payments provision precluded coverage where the insured settled a claim without the insurer’s consent); Lafarge Corp. v. Hartford Cas. Ins. Co., 61 F.3d 389, 399-400 (5th Cir. 1995) (concluding, under Texas law, that a voluntary payments provision precluded the insurer from being liable for defense costs incurred by the insured prior to tender of claim); Insua v. Scottsdale Ins. Co., 104 Cal.App.4th 737, 743-44, 129 Cal.Rptr.2d 138 (2002) (ruling, under California law, that the same voluntary payments provision typically “bars reimbursement for pre-tender expenses based on the reason ing that until the defense is tendered ... there is no duty to defend”) (internal quotation marks omitted). This is the majority rule. See 8" }, { "docid": "21395103", "title": "", "text": "(Wis.App. 1996), review granted, 207 Wis.2d 285, 560 N.W.2d 273 (1996); see also CBI, 907 S.W.2d at 522 n. 8 (citing cases from a number of jurisdictions concluding that similar absolute pollution exclusions were clear and unambiguous); TriCounty Svc. Co. v. Nationwide Mut. Ins. Co., 873 S.W.2d 719, 721 (Tex.App. — San Antonio 1993, writ denied) (\"On the basis of the plain meaning of the exclusion in question, virtually all courts in other jurisdictions which have considered such an exclusion have found that it precludes all coverage of any liability arising out of the release of pollutants.”). . That clause provides, in pertinent part: Seepage and Pollution Buy-Back (168 Hour Clause) Notwithstanding the absolute seepage and pollution exclusion contained in this policy, these shall not apply provided that the assured establishes that [] all the following conditions have been met. A. The occurrence was sudden and accidental and was neither expected nor intended by the assured. An accident shall not be considered unintended or unexpected unless caused by some intervening event neither expected nor intended by the assured. B. The occurrence can be identified as commencing at a specific time and date during the term of this policy. C. The occurrence became known to the assured within 168 hours after its commencement and was reported to Underwriters within 90 days thereafter. D.The occurrence did not result from the assured’s intentional and willful violation of any government statute, rule or regulation. . Under Texas law, notice provisions are enforceable. See, e.g., Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 174-75 (Tex.1995) (holding that insurer was not bound by judgment against insured where insured failed to notify insurer of pending lawsuit as policy required and lack of notice prejudiced insurer)." }, { "docid": "11557379", "title": "", "text": "costs are generally recoverable under policy provisions such as those here, we disagree. . Lafarge argues that notice was tendered eleven months before it began to incur costs above the $250,000 policy deductible. Apart from its bearing on whether Hartford was prejudiced by the delay in tendering notice, which is not a factor when the insurer is not arguing that the entire policy was forfeited by failure of the condition, see note 18, supra, this fact does not help Lafarge. If any expenses incurred before tender are not recoverable, they could not be considered towards satisfaction of the deductible, and Hartford would be entitled to a reduction in damages assessed against it. . See Vesta Insurance Co. v. Amoco Production Co., 986 F.2d 981, 989 (5th Cir.) (plaintiff entitled to prejudgment interest at 6% statutory rate on amount of loan/advance it made to defendant), cert. denied, — U.S. —, 114 S.Ct. 80, 126 L.Ed.2d 48 (1993); St. Paul Insurance Co. v. Rakkar, 838 S.W.2d 622, 631 (Tex.App.—Dallas 1992, writ denied) (when insured's claim was for total loss by fire, claim was liquidated demand for full amount of the policy, and contract was for an ascertainable sum payable); see also Perry Roofing Co. v. Olcott, 744 S.W.2d 929, 931 (Tex.1988) (stating that prejudgment interest may be awarded on equitable principles \"for unascer-tamable or unliquidated contractual damages”) (emphasis added). . Lafarge argues on cross-appeal that the Texas Insurance Code claims were erroneously dismissed on summary judgment. It acknowledges that, if this Court were to reverse the summary judgment as to those claims, section 38.006(4) would operate to bar a double recovery of attorneys' fees. . Likewise, our pre-Bituminous Casualty decision in Enserch merely assumed that attorneys’ fees were recoverable but did not further discuss the issue. . In fact, it seems clear from the district court’s order of February 3, 1992, that Lafarge made no objection to the decision to prorate defense costs. Considering Lafarge's motion for reconsideration of its December 7, 1991, order, the district court stated: \"Lafarge argues that, because the Court saw fit to apportion Hartford's responsibility for defense" }, { "docid": "15780429", "title": "", "text": "(1994) (opinions of Chief Justice Cavanagh, and Justices Levin, Brickley, and Griffin); Arco Ind. Corp. v. American Motorists Ins. Co., 448 Mich. 395, 405, 531 N.W.2d 168 (1995). Century has not done that here. Primary Insurers’ arguments that their duty to defend is conditioned upon timely notice, formal tender, or compliance with the voluntary payment provision of their insurance contracts are also inconsistent with prevailing Michigan law. 4. Timely Notice, Formal Tender and Satisfaction of a Voluntary Payment Provision Are Not Prerequisites to the Duty to Defend Primary Insurers argue that the insured must want and request that the insurer provide a defense service before the duty to defend will arise. Relying principally on the district court decision in Fireman’s Fund Ins. Cos. v. Ex-Cell-O Corp., 790 F.Supp. 1318 (E.D.Mich.1992) (Ex-Cell-O II), they assert that tender gives rise to the duty to defend. Stated more fully, Primary Insurers argue that absent tender, there can be no duty to defend; absent duty, there can be no breach; absent a breach, there can be no obligation on their part to reimburse defense costs. This Court disagrees. They confuse events which give rise to the duty to defend (an underlying suit is brought against the insured with allegations that are arguably within the insurance policy's indemnification provisions) and events which give rise to an insurer’s breach of that duty (awareness of the need for defense and an unjustified refusal to defend). This Court believes that Ex-Cell-0 II’s holding to the contrary is incorrect. The Michigan Supreme Court has never held that notice, let alone formal tender of a defense, gives rise to the duty to defend. There is no policy language or Michigan case law to support this position. Under Michigan law, the duty to defend pre-exists any obligation on the part of the insured as to notice or compliance with the voluntary payment provision of an insurance contract. Once the duty arises, it will continue “until such time as [the insurer] can establish conclusively” that the potential for indemnification coverage no longer exists. American Bumper, 207 Mich.App. at 71, 523 N.W.2d at" }, { "docid": "11557334", "title": "", "text": "terms. Gulf Chemical & Metallurgical Corp. v. Associated Metals & Minerals Corp., 1 F.3d 365, 369 (5th Cir.1993). Even if the plaintiffs complaint alleges multiple claims or claims in the alternative, some of which are covered under the policy and some of which are not, the duty to defend arises if at least one of the claims in the complaint is facially within the policy’s coverage. Rhodes v. Chicago Insurance Co., 719 F.2d 116, 119 (5th Cir.1983). The duty to defend is thus broader than the duty to indemnify. Gulf Chemical, 1 F.3d at 369. Despite the breadth of this duty when applicable, however, “[a]n insurer is required to defend only those cases within the policy coverage.... If the petition only alleges facts excluded by the policy, the insurer is not required to defend.” Fidelity & Guaranty Insurance Underwriters, Inc. v. McManus, 633 S.W.2d 787, 788 (Tex.1982) (citations omitted). Applying these principles, we conclude that most of the exclusions on which Hartford relies in denying its duty to defend are clear ly not applicable to the case at hand. We find merit, however, in Hartford’s argument that the “incidental contract” provision precluded a duty to defend against All American’s original petition, which only alleged a surety claim against Lafarge. We therefore conclude that Hartford had no duty to defend until the amended petition was tendered to it. We will address each of Hartford’s arguments in turn. Hartford first argues that, under the policy’s “own products” exclusion, under which no coverage is provided for “property damage to the named insured’s products arising out of such products or any part of such products,” it is not required to defend Lafarge with respect to that portion of damages that represented the cost of replacing the coating, as opposed to the damages for the cost of replacing the pipeline itself. This argument is wholly without merit. That Hartford may not ultimately be required to indemnify Lafarge for the replacement cost of the coating does not abrogate its duty to defend a covered cause of action in the first instance. The complaint clearly alleged that" }, { "docid": "7444334", "title": "", "text": "coverage for Quorum’s gross negligence falls into the second category because it fails expressly to state the parties’ intent to require the Hospital to indemnify Quorum for losses, claims or damages resulting from Quorum’s simple negligence. The Management Agreement provision requiring the Hospital to indemnify Quorum fails to satisfy the fair notice requirements of the express negligence rule. As a matter of law, the provision is not enforceable against the Hospital for claims based on Quorum’s own negligence. Quorum is not entitled to indemnification from the Hospital for the Rodriguez judgment. B. The Insurer’s Duty to Defend and Indemnify Texas law is clear that insurance policies are subject to the same rules of construction generally applicable to contracts. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998) (citations omitted). If one party to an agreement commits a material breach, the other party is discharged or excused from any otherwise binding obligation to perform. See Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 693 (Tex.1994); Mead v. Johnson Group, Inc., 615 S.W.2d 685, 689 (Tex.1981). An insurer’s duty to defend and its duty to indemnify are distinct and separate. Farmers Tex. County Mut. Ins. v. Griffin, 955 S.W.2d 81, 82 (Tex.1997); E&L Chipping Co. v. Hanover Ins. Co., 962 S.W.2d 272, 274 (Tex.App.—Beaumont 1998, no pet.); Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 636 (Tex.1973). The duty to defend is based upon the factual allegations in the pleadings and the policy language itself. See American Nat. Gen. Ins. Co. v. Ryan, 274 F.3d 319 (5th Cir.2001); American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 847-48 (Tex.1994). The duty to indemnify arises from the actual facts that are developed to establish liability in the underlying suit. See Trinity Univ. Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex.1997) (citing Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 25 (Tex.1965)). An insurer may have a duty to defend but, eventually, not to indemnify. Griffin, 955 S.W.2d at 82. An insured has a duty to cooperate with its insurer in the defense of claims for" }, { "docid": "11557378", "title": "", "text": "denied, 449 U.S. 1033, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980), the courts merely determined that the insureds were entitled to costs and fees involved in defending the actions; there is no indication in either decision that the courts were asked to or did in fact consider whether pretender costs were recoverable. In Burroughs Wellcome Co. v. Commercial Union Insurance Co., 713 F.Supp. 694 (S.D.N.Y.1989), another case relied on by the district court, Burroughs Wellcome faced numerous lawsuits connected to its distribution of DES. The district court stated that the insurer's duty to defend ran \" 'from the time each case or claim is brought ..Id. at 697 (emphasis in original). It is not clear that this is intended to cover pre-tender time. Burroughs Wellcome also is factually distinguishable from the present case. There, the insured was facing numerous, repeated lawsuits all based on the distribution of the same product. That is certainly not the case here. In any event, to the extent, if any, that Burroughs Wellcome stands for the proposition that pre-tender defense costs are generally recoverable under policy provisions such as those here, we disagree. . Lafarge argues that notice was tendered eleven months before it began to incur costs above the $250,000 policy deductible. Apart from its bearing on whether Hartford was prejudiced by the delay in tendering notice, which is not a factor when the insurer is not arguing that the entire policy was forfeited by failure of the condition, see note 18, supra, this fact does not help Lafarge. If any expenses incurred before tender are not recoverable, they could not be considered towards satisfaction of the deductible, and Hartford would be entitled to a reduction in damages assessed against it. . See Vesta Insurance Co. v. Amoco Production Co., 986 F.2d 981, 989 (5th Cir.) (plaintiff entitled to prejudgment interest at 6% statutory rate on amount of loan/advance it made to defendant), cert. denied, — U.S. —, 114 S.Ct. 80, 126 L.Ed.2d 48 (1993); St. Paul Insurance Co. v. Rakkar, 838 S.W.2d 622, 631 (Tex.App.—Dallas 1992, writ denied) (when insured's claim was for" }, { "docid": "22508942", "title": "", "text": "Endorsement-Notice , Order No. 23080 (Mar. 13, 1973), available at http://www.tdi.texas.gov/commercial/pcck23080.html (last updated Mar. 16, 2018) (hereinafter \"Order 23080\"). Order 23080. 476 S.W.2d 278, 281 (Tex. 1972). Berkley Reg'l Ins. Co. v. Philadelphia Indem. Ins. Co. , 690 F.3d 342, 345 (5th Cir. 2012) (alterations in original) (emphasis added). PAJ, Inc. v. Hanover Ins. Co. , 243 S.W.3d 630, 632 (Tex. 2008). See also Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Crocker , 246 S.W.3d 603, 609 (Tex. 2008). Duzich v. Marine Office of Am. Corp. , 980 S.W.2d 857, 866 n.9 (Tex. App. 1998) (\"The insurance contract at issue in this case does not require 'prejudice' before the company may assert a 'late notice' defense. Texas Board of Insurance Order No. 23080 requires a showing of prejudice before allowing a 'late notice' defense on any general liability policy, however.\") (citations omitted). Other courts of appeals have also recognized the mandatory nature of Order 23080. See Chiles v. Chubb Lloyds Ins. Co. , 858 S.W.2d 633, 635 (Tex. App. 1993) (citing Trevino v. Allstate Ins. Co. , 651 S.W.2d 8, 11 n.1 (Tex. App. 1983) ). Coastal Refining & Mktg., Inc. v. U.S. Fidelity & Gaur. Co. , 218 S.W.3d 279, 285 (Tex. App. 2007). See, e.g. , Lennar Corp. v. Markel Am. Ins. Co. , 413 S.W.3d 750, 760 (Tex. 2013) (J. Boyd, concurring) (\"This Court has directly addressed the prejudice requirement five times over the past forty years. Although we declined to impose the requirement the first time we considered it,\" in Cutaia , \"we then did impose it in each of the subsequent cases.\"). 875 S.W.2d 691 (Tex. 1994). Id. at 692. Id. at 693 (citations omitted). Id. 896 S.W.2d 170 (Tex. 1995). Id. at 174 (citing Liberty Mut. Ins. Co. v. Cruz , 883 S.W.2d 164, 165 (Tex. 1993) ). Id. 243 S.W.3d 630 (Tex. 2008). Id. at 631 (citing Hernandez , 875 S.W.2d at 692 ). Id. at 632-33. Id. at 636. 288 S.W.3d 374 (Tex. 2009). Id. at 375. Id. at 378 (quotation marks, alterations, and citations omitted). Id. at 378-79. Id." } ]

[ { "docid": "23531761", "title": "", "text": "has become unrandom. Section 1866(f) requires that emergency jurors be randomly selected. There is no suggestion in that subsection that Congress intended to allow greater play for the prospects’ personal preferences in this aspect of jury selection than in any other. A litigant need not show prejudice to establish a “substantial failure to comply” with the Act. Congress deleted just such a requirement from the bill presented to the conference committee. See H.R.Rep. No. 1076, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.Code Cong. & Admin. News, pp. 1792, 1806. Moreover, when a statutory violation directly affects the random nature of the selection process, there is no need to show that the violation tended to exclude some cognizable group from that process. Congress did not simply outlaw certain disparities in representation of certain groups on juries; it designed a procedure of random selection to ensure that no such disparities would arise. A departure from the statutory scheme that directly affects the random nature of selection establishes a substantial violation independently of the departure’s consequences in a particular case. Providing prospective jurors with complete discretion whether or not to serve negates the statutory mandate of random selection. The practice of the district court amounted to a “substantial failure to comply” with the Act. Accordingly, had appellant properly preserved his objection to the practice, he would clearly have been entitled to relief. III. Failure to Preserve Statutory Objection Unjust as it may seem at first blush, however, appellant cannot avail himself of the district court’s substantial failure to comply with the Act’s jury selection procedures. His counsel objected to the presence of volunteers on the jury panel only by oral objection at the outset of the voir dire. Counsel stated that the use of volunteers violated the random selection rule, and he asked that all volunteers be struck. A conclusion that this form of objection was adequate to preserve the claim of departure from the Act would run strongly in the face of contrary language in the Act itself, its legislative history, and judicial interpretation to date. 28 U.S.C. § 1867" } ]

[ { "docid": "23423135", "title": "", "text": "computer cards, it would still be extremely difficult to determine a person’s position at a given point in time. There were over 30,000 separate computer cards representing persons on the qualified wheel. As wheel members were selected for jury service and their names removed, the relative positions of the remaining persons on the wheel changed. For example, if persons in positions 2 and 3 were selected, the wheel member in position 4 would be shifted to position 2, position 5 shifted to position 3, and so on. Thus, in order to determine a person’s present position on the wheel, it would be necessary to sort the 30,000 cards to reflect the removal of all previously-selected persons. If even a single card was out of order or was improperly included or excluded, the positions of the remaining persons would be miscalculated. Since approximately ninety grand and petit jury panels were chosen from the wheel prior to the jury which indicted defendants, the relative positions of the remaining qualified jurors obviously changed substantially from the original order of the wheel. Defendants analogize this case to United States v. Kennedy, 548 F.2d 608 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977), in which the jury clerk, to satisfy a deficiency in the number of prospective jurors, sought volunteers from the list of persons who had served at the previous court term. This Court held the practice, which deviated from express statutory procedures, to be a substantial violation of the Act’s “random selection” requirement. In Kennedy, there was no question the practice resulted in the nonrandom selection of jurors because the jury clerk on an ad hoc basis directly contacted particular jurors who then were given complete discretion on whether to serve. Thus the pool from which the jurors came was itself selected, rather than randomly chosen. In the present case, the practices challenged created only the slim chance that particular jurors could be designated by the jury clerk. We cannot conclude this mere possibility frustrated the randomness principle of the Act. We hold the jury clerk’s methods" }, { "docid": "3952068", "title": "", "text": "is provided in 28 U.S.C. § 1867(d): “If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in conformity with this title.” The party raising the challenge need not show prejudice. See United States v. Kennedy, 548 F.2d 608, 612 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977); House Report, 1968 U.S.Code Cong. & Admin.News at 1806 (noting that a committee amendment “eliminates the need to prove prejudice as a condition of judicial intervention when substantial noncompliance with the act is established”). III. Because appellants challenge the process by which the panel of prospective jurors was selected, we will set forth that process in some detail. Before voir dire, the trial judge sent a form letter to each of the approximately 300 jurors who had been summoned to appear for jury duty on August 21, 1989, the day on which appellants’ trial was scheduled to begin. The letter asked two questions, requesting a “yes” or “no” response on each of them: (1) “Do you know any of the following defendants in this case?” (the letter then listed all of the defendants and their addresses); and (2) “Will you be able to serve on a jury for a four to six week trial?” In the event that a prospective juror claimed an inability to sit through a lengthy trial, the letter asked that an explanation be provided. No such explanation was requested in the event a prospective juror knew one of the defendants. The jury clerk compiled the results of the letters, and submitted to the district court a list of 167 names of people for whom she believed excusal or exclusion was appropriate, with a brief notation indicating the grounds for each person’s removal. The vast majority of these were for hardship engendered by a lengthy trial. The list included twelve jurors, however, because they responded that they knew one of the defendants. The district court signed" }, { "docid": "23423108", "title": "", "text": "until 33 names are selected. The persons selected from the computer are mailed a summons for jury service. They have an opportunity at that time to request an excusal from service on the basis of hardship or inconvenience. If such an excuse is granted, the GSA is notified so that it may enter the information on the computer tape. Persons permanently excused are removed from the qualified wheel, while those whose service is merely deferred remain in the wheel and are subject to being called for later service. In addition to prescribing the procedures for local plans, the Act also sets out the exclusive methods by which noncompliance may be challenged. 28 U.S.C.A. § 1867(e). For criminal cases, it provides for the dismissal of an indictment, following proper objection, upon a court’s determination of a “substantial” failure to comply with the statutory procedures. 28 U.S.C.A. § 1867(a). A motion to dismiss must be filed together with a sworn statement “before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier.” This timeliness requirement was provided to prevent dilatoriness and to ensure the rapid disposition of claims, particularly those that are spurious. House Report, supra, at 1805. It is to be strictly construed, and failure to comply precisely with its terms forecloses a challenge under the Act. See, e. g., United States v. Hawkins, 566 F.2d 1006 (5th Cir.), cert. denied, 439 U.S. 848, 99 S.Ct. 150, 58 L.Ed.2d 151 (1978); United States v. Kennedy, 548 F.2d 608 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977); United States v. De Alba-Conrado, 481 F.2d 1266 (5th Cir. 1973). As this Court noted in Kennedy: In the Act, Congress set out a uniform, relatively strict scheme for jury selection. Congress included a new remedy for substantial violations of the Act, regardless of whether the litigant challenging the jury had been prejudiced by the jury selection. As a price for this remedy, Congress was entitled to exact strict compliance with" }, { "docid": "13000338", "title": "", "text": "be forwarded immediately to the judicial council of the circuit, which shall have the power to make any appropriate order, prospective or retroactive to redress any misapplication of clause (5) of this subsection, but otherwise exclusions effectuated under such clause shall not be subject to challenge under the provisions of this title. Any person excluded from a particular jury under clause (2), (3), or (4) of this subsection shall be eligible to sit on another jury if the basis for his initial exclusion would not be relevant to his ability to serve on such other jury. . § 1866. Selection and summoning of jury panels (e) In any two-year period, no person shall be required to (1) serve or attend court for prospective service as a petit juror for a total of more than thirty days, except when necessary to complete service in a particular case, or (2) serve on more than one grand jury, or (3) serve as both a grand and petit juror. . Subsection (e) does provide that a person may serve more than 30 days if necessary to complete service in a particular case. . The panels are still selected at random from a large group of names. The procedure used here would never produce a jury like that the Court condemned in United States v. Kennedy, 5 Cir., 1977, 548 F.2d 608 (although Court disapproved emergency use of volunteer jurors selected from those who had just finished a term of jury service, it found that defendant had not preserved his statutory remedy. 28 U.S.C.A § 1867(a)), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140. . Our prior opinions have emphasized that the statute provides a remedy only for “substantial” failure to comply with the provisions of the Act. See, e. g., United States v. Evans, 5 Cir., 1976, 526 F.2d 701, 705-06, cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78, in which we stated that: Congress, recognizing that there would undoubtedly be error in the jury selection process that should not result in the dismissal of an indictment, left" }, { "docid": "1537355", "title": "", "text": "six defendants were arrested on the high seas aboard a vessel containing more than four thousand kilograms of marijuana. Defendants have been charged with aiding and abetting, which is analogous to conspiracy, thus making severance impractical since the evidence is the same as to each defendant. Therefore, defendants’ motions for dismissal are hereby DENIED, since retrial under the present circumstances is not prohibited by the Double Jeopardy Clause. After this order was read in open court, defendants moved that the case be stayed pending an interlocutory appeal to the court of appeals. We denied the motions, finding them frivolous. See, e.g., Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Dunbar, 611 F.2d 985, 988 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). SO ORDERED. San Juan, Puerto Rico, this 17th day of July, 1989. Gilberto Gierbolini GILBERTO GIERBOLINI U.S. District Judge . 28 U.S.C. § 1867(b) provides: (b) In criminal cases, before the voir dire examination begins, or within seven days after the Attorney General of the United States discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the Attorney General may move to dismiss the indictment or stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. . Defendant Vanegas-Ortiz, Attorney John Mudd; defendant Cardales-Barrios, Attorney Ramonita Dieppa Gonzalez; defendant Santiago-Escobar, Attorney Luis Roberto Santos; defendant Phisco Ramirez, Attorney Jose Romo Matienzo. . 28 U.S.C. § 1866(e) provides: (e) In any two-year period, no person shall be required to (1) serve or attend court for prospective service as a petit juror for a total of more than thirty days, except when necessary to complete service in a particular case, or (2) serve on more than one grand jury, or (3) serve as both a grand and petit juror. . 28 U.S.C. § 1866(b) requires that prospective jurors shall be issued summonses, and: \"Each person drawn for jury service may be served personally, or" }, { "docid": "14867958", "title": "", "text": "or otherwise affect the integrity of jury proceedings. The closing sentence of § 1866(c) says that jurors excused \"from a particular jury under clause (2), (8) or (4) of this subsection shall be eligible to sit on another jury if the basis for his initial exclusion would not be relevant to his ability to serve on such other jury,\" evidently reflecting an assumption that those subsections included case-specific excusals. Thus § 1866(c) evidently establishes an exclusive set of criteria for excusals, and appears to cover both generic and case-specific. In invoking its exélusivity provision, appellants are effectively claiming (though they don't clearly acknowledge the sweep of their argument) that the Jury Selection and Service Act completely barred the case-specific hardship excuse. That reading, however, is impossible to square with the statutory definition of hardship excuses, 28 U.S.C. § 1869(j), which expressly addresses instances where \"it is anticipated that a trial or grand jury proceeding may require more than thirty days of service,\" authorizing consideration even of the employer's interest in such cases. Although no completely satisfactory reading appears available, it seems clear that § 1866(c)(1)'s requirement that a person excused on hardship grounds \"be summoned again for jury service\" or that his name \"be reinserted into the qualified jury wheel for [future] selection\" aims at assuring that a hardship excuse valid at one point in time not be turned into a lifetime excuse regardless of changing circumstances. As the trial judge here did not even release the \"excused\" jurors from their current terms of service, his acts represented de facto compliance with § 1866(c)(1). We thus share the evidently universal assumption of the federal courts that case-specific hardship excuses survive the Jury Selection and Service Act. See, e.g., United States v. Paradies, 98 F.3d 1266, 1280-81 (11th Cir.1996); United States v. Williams, 927 F.2d 95, 97 (2d Cir.1991). Even if they did not, it is only a \"substantial failure\" to comply with the act that is to be remedied, see 28 U.S.C. § 1867(a), namely ones tending to defeat the key purposes of the act: random selection of jurors and" }, { "docid": "13000339", "title": "", "text": "more than 30 days if necessary to complete service in a particular case. . The panels are still selected at random from a large group of names. The procedure used here would never produce a jury like that the Court condemned in United States v. Kennedy, 5 Cir., 1977, 548 F.2d 608 (although Court disapproved emergency use of volunteer jurors selected from those who had just finished a term of jury service, it found that defendant had not preserved his statutory remedy. 28 U.S.C.A § 1867(a)), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140. . Our prior opinions have emphasized that the statute provides a remedy only for “substantial” failure to comply with the provisions of the Act. See, e. g., United States v. Evans, 5 Cir., 1976, 526 F.2d 701, 705-06, cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78, in which we stated that: Congress, recognizing that there would undoubtedly be error in the jury selection process that should not result in the dismissal of an indictment, left room for harmless error by providing that dismissal should lie only when there was a substantial failure to comply with the Act. An analysis of the question whether there has been substantial compliance with the Act requires a review of the purpose of the Act and its underlying policy. Section 1861 contains the declaration of policy: It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose. Section 1862 implements this cross-sectional policy by proscribing discrimination in the selection process: According to the legislative history, H.R. 1076, 90th Cong., 2d" }, { "docid": "1537356", "title": "", "text": "days after the Attorney General of the United States discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the Attorney General may move to dismiss the indictment or stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. . Defendant Vanegas-Ortiz, Attorney John Mudd; defendant Cardales-Barrios, Attorney Ramonita Dieppa Gonzalez; defendant Santiago-Escobar, Attorney Luis Roberto Santos; defendant Phisco Ramirez, Attorney Jose Romo Matienzo. . 28 U.S.C. § 1866(e) provides: (e) In any two-year period, no person shall be required to (1) serve or attend court for prospective service as a petit juror for a total of more than thirty days, except when necessary to complete service in a particular case, or (2) serve on more than one grand jury, or (3) serve as both a grand and petit juror. . 28 U.S.C. § 1866(b) requires that prospective jurors shall be issued summonses, and: \"Each person drawn for jury service may be served personally, or by registered, certified, or first-class mail addressed to such person at his usual residence or business address.\" . 28 U.S.C. § 1867(d) provides in pertinent part: \"If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in conformity with this title. . If the district court’s concerns can be interpreted to reflect the fear that the process was tainted because excusáis were granted by the deputy clerk rather than by a judge, the same result obtains. See generally United States v. Maskeny, 609 F.2d 183, 193 (5th Cir.), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980); United States v. Evans, 526 F.2d 701, 706 (5th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976); United States v. Marrapese, 610 F.Supp. 991, 1000-02 (D.R.I.1985), aff’d, 826 F.2d 145 (1st Cir.), cert. denied, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358" }, { "docid": "15149720", "title": "", "text": "“lenient treatment” by the district judge, he should not have been permitted to participate in their trial — the implication being that persons who had been treated “kindly” by a particular judge would, as jurors, be more likely to vote in favor of convicting defendants. On appeal, defendants’ focus is even blurrier: whether the juror was favorably or unfavorably disposed toward the court, they ruminate, he must have been biased in some indeterminable way. And, they assert for the first time a claim of ineligibility. Appellants miss the mark by a wide margin. For one thing, 28 U.S.C. § 1865(b)(5) (1982), which bars certain felons from acting as jurors, does not implement a constitutional bar to jury service, but establishes a statutory impediment. Like so many statutory rights, the right to exclude felons must be affirmatively invoked; the Jury Selection and Service Act of 1968 (JSSA), 28 U.S.C. §§ 1861-78, establishes strict procedural requirements for challenging ineligible jurors. In general, a defendant must assert his rights “before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier_” 28 U.S.C. § 1867(a). Inasmuch as (1) Rodriguez completed the questionnaire truthfully and divulged his prior conviction, and (2) jury questionnaires are available to defense counsel upon motion, prior to empanelment, under the district court’s juror selection plan, defendants seemingly waived the point. Compare, e.g., Government of the Virgin Islands v. Rosado, 699 F.2d 121, 124-25 (3d Cir.) (objection to court’s use of passers-by as jurors waived by want of timely objection), cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983); United States v. Kennedy, 548 F.2d 608, 610-14 (5th Cir.) (same; use of “volunteer” jurors), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977); see also 28 U.S.C. § 1867(e) (procedures prescribed by statute comprise “exclusive means” for arguing that jurors “not selected in conformity with the provisions of [JSSA]”). In the second place, there was no prejudice. The fact that a juror technically should have been disqualified," }, { "docid": "13000337", "title": "", "text": "a juror would be likely to disrupt the proceedings, or (3) excluded upon peremptory challenge as provided by law, or (4) excluded pursuant to the procedure specified by law upon a challenge by any party for good cause shown, or (5) excluded upon determination by the court that his service as a juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the integrity of jury deliberations. No person shall be excluded under clause (5) of this subsection unless the judge, in open court, determines that such is warranted and that exclusion of the person will not be inconsistent with sections 1861 and 1862 of this title. The number of persons excluded under clause (5) of this subsection shall not exceed one per centum of the number of persons who return executed jury qualification forms during the period, specified in the plan, between two consecutive fillings of the master jury wheel. The names of persons excluded under clause (5) of this subsection, together with detailed explanations for the exclusions, shall be forwarded immediately to the judicial council of the circuit, which shall have the power to make any appropriate order, prospective or retroactive to redress any misapplication of clause (5) of this subsection, but otherwise exclusions effectuated under such clause shall not be subject to challenge under the provisions of this title. Any person excluded from a particular jury under clause (2), (3), or (4) of this subsection shall be eligible to sit on another jury if the basis for his initial exclusion would not be relevant to his ability to serve on such other jury. . § 1866. Selection and summoning of jury panels (e) In any two-year period, no person shall be required to (1) serve or attend court for prospective service as a petit juror for a total of more than thirty days, except when necessary to complete service in a particular case, or (2) serve on more than one grand jury, or (3) serve as both a grand and petit juror. . Subsection (e) does provide that a person may serve" }, { "docid": "13000335", "title": "", "text": "petit jury. . § 1861. Declaration of policy It is the policy of the United States that all litigants in Federal Courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose. . Appellants also contend (1) that the Clerk’s removing from prospective service persons who have served during the previous two years, without regard to length of service, violates 28 U.S.C.A. § 1866(c) and (e), and (2) that the District’s method of returning excused persons to a list of prospective jurors violates § 1866(c). We, however, decline to address these claims, since appellants raise them for the first time on appeal. See United States v. De Alba-Conrado, 5 Cir., 1973, 481 F.2d 1266. Since appellants present only statutory claims, they are entitled to relief only if they comply with the requirements of 18 U.S.C.A § 1867(a) and (d) in seeking it. . § 1866. Selection and summoning of jury panels (c) Except as provided in section 1865 of this title or in any jury selection plan provision adopted pursuant to paragraph (5), (6), or (7) of section 1863(b) of this title, no person or class of persons shall be disqualified, excluded, excused, or exempt from service as jurors: Provided, That any person summoned for jury service may be (1) excused by the court, upon a showing of undue hardship or extreme inconvenience, for such period as the court deems necessary, at the conclusion of which such person shall be summoned again for jury service under subsections (b) and (c) of this section, or (2) excluded by the court on the ground that such person may be unable to render impartial jury service or that his service as" }, { "docid": "23423152", "title": "", "text": "the Act. See, e. g., United States v. Maskeny, 609 F.2d 183, 193-94 (5th Cir.), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980); United States v. Evans, 526 F.2d 701, 706 (5th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976); United States v. Jenison, 485 F.Supp. 655, 667-68 (S.D.Fla.1979); United States v. Huber, 457 F.Supp. 1221, 1231 (S.D.N.Y.1978). Cf. United States v. Davis, 546 F.2d 583, 590-92 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977) (delegation to the GSA the role of selecting jurors by use of the computer is not a substantial violation). While the clerk personnel should have consulted the judges and the Clerk of Court more closely when uncertainties arose with particular jurors or the general criteria to be used, the failure to do so, either in itself or when combined with the erroneous exclusions, does not warrant dismissal of the indictments. 4. Erroneous Permanent Excusáis by Jury Clerk After Summoning. Defendants challenged the practice of granting permanent excusáis to persons summoned for jury service, rather than temporary excusáis as contemplated by the Act and Local Plan. The evidence revealed the following: • From 1978 to February 1980, 10 grand juries were empaneled in the Northern District. 445 persons on the qualified wheels were served with summonses to report for service on these juries. Of these, 141 were excused by the clerk’s office prior to reporting, with all but 3 receiving permanent excusáis. Most were excused on “hardship” grounds. Defendants challenged the permanent excusal of 74 of these jurors. In addition, the jury clerk permanently excused from jury service 74 persons who had been excused in court by the district judge, regardless of the reason for their excusal by the judge. The court found that some of these persons had been excused in court merely because they were “surplus” jurors, while others had been excused because of hardship. The jury clerk testified she had granted permanent excusáis because she did not believe that temporary excusáis could be accommodated. Later testimony, however, indicated" }, { "docid": "13000340", "title": "", "text": "room for harmless error by providing that dismissal should lie only when there was a substantial failure to comply with the Act. An analysis of the question whether there has been substantial compliance with the Act requires a review of the purpose of the Act and its underlying policy. Section 1861 contains the declaration of policy: It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose. Section 1862 implements this cross-sectional policy by proscribing discrimination in the selection process: According to the legislative history, H.R. 1076, 90th Cong., 2d Sess., U.S.Code Cong. & Admin.News, 1968, p. 1792 the Act embodies two important general principles: (1) random selection of juror names from the voter lists of the district or division in which court is held; and (2) determination of juror disqualifications, excuses, exemptions, and exclusions on the basis of objective criteria only. These principles provide the best method for obtaining jury lists that represent a cross section of the relevant community and for establishing an effective bulwark against impermissible forms of discrimination and arbitrariness. In United States v. Davis, 5 Cir., 1977, 546 F.2d 583, 589, cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391, we further explained the substantial noncompliance standard, saying that Determining the substantial compliance question requires that the alleged violations of the Act be weighed against the goals of the statute. See, e. g., Evans, supra, 526 F.2d at 705-06; Armsbury, supra [United States v. Armsbury, D.Or.], 408 F.Supp. [1130] at 1142. The major policy of the Act is that juries shall be “selected at random from a fair" }, { "docid": "11655755", "title": "", "text": "As Judge Rosenn noted in the proposed panel opinion, statistically speaking, the situation here is even worse than the one in Broadway, supra. Plainly, we cannot simply assume that the responding 30% of the population is characteristically and attitudinally a fair cross-section of the population. There are, as the majority points out, distinctions between Broadway and the instant case, but Broadway’s statistical analysis seems quite unexceptionable and in point. In principle, there is no difference between the case before us and United States v. Kennedy, 548 F.2d 608 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977). In that case there was a deficiency in the number of jury prospects for a particular month and the jury clerk sought volunteers from the list of persons serving during an earlier month. Volunteering to serve as occurred in Kennedy, insofar as it affects randomness, is in principle no different than responding to a questionnaire. The Kennedy court said: We need not speculate as to what sort of biases will be reflected in the jury chosen on the basis of its members’ willingness to depart from their daily business and serve as jurors. It is enough to recognize that a substantial variable, not contemplated by the Act’s few, narrow categories of qualifications, exemptions, and excuses, has confounded the selection process. 548 F.2d at 612 (footnote omitted). In the case at bar, the 30%' of the jury list who responded to questionnaires are, in effect, volunteers. The 70%' who failed to respond are, in effect, non-volunteers. Gometz merely seeks an opportunity to show that this highly non-random process has resulted in substantial nonrepresentativeness of the jury wheel. Even if the language of the Jury Selection and Service Act were susceptible of two interpretations, mine and the interpretation the majority gives it (that Congress was indifferent to randomness in the opera tion of the questionnaire system), we should opt for the interpretation that effectuates the plain Congressional intent. And there are clear expressions of Congressional commitment to random selection. We should thus decide what constitutes a substantial failure to comply" }, { "docid": "23084331", "title": "", "text": "by outsiders. The GSA official said that he would not honor a request for access unless the request came through the clerk’s office, but that he would allow access to the room for the sole purpose of viewing the selection process. The clerk testified that he would certainly permit access to the selection process and that the GSA could not veto any such decision. Defendant’s public-access complaint is based on 28 U.S.C. § 1866(a), which provides: From time to time, the jury commission or the clerk shall publicly draw at random from the qualified jury wheel such number of names of persons as may be required for assignment to grand and petit jury panels. . (Emphasis added.) Cf. 28 U.S.C. § 1864(a) (public drawing from master wheel). The local plan further requires that automated drawings be made public and be announced publicly in advance. Security reasons were offered for the GSA’s cautious access policy. There was testimony, however, that public access is now and will continue being freely granted. We are not faced with the problem, therefore, of correcting this deficiency in the jury-selection system for prospective application, but only with the need to determine whether this error entitles defendant to relief. It will not suffice for defendant merely to show that the public-access provision was violated. The exclusive ground for challenging jury-selection procedures under the statute is “substantial failure to comply” with the Act. 28 U.S.C. § 1867(a), (e). This circuit has applied the statutory standard. See United States v. Evans, 5 Cir., 1976, 526 F.2d 701, cert. denied, - U.S. -, 97 S.Ct. 62, 50 L.Ed.2d 78. Accord, United States v. Armsbury, D.Or., 1976, 408 F.Supp. 1130; United States v. McDaniels, E.D.La., 1973, 370 F.Supp. 298, aff’d sub nom., United States v. Goff, 5 Cir., 509 F.2d 825, cert. denied, 423 U.S. 857, 96 S.Ct. 109, 46 L.Ed.2d 83 (1975). As this court observed in Evans: Congress, recognizing that there would undoubtedly be error in the jury selection process that should not result in the dismissal of an indictment, left room for harmless error by providing that dismissal" }, { "docid": "23084332", "title": "", "text": "problem, therefore, of correcting this deficiency in the jury-selection system for prospective application, but only with the need to determine whether this error entitles defendant to relief. It will not suffice for defendant merely to show that the public-access provision was violated. The exclusive ground for challenging jury-selection procedures under the statute is “substantial failure to comply” with the Act. 28 U.S.C. § 1867(a), (e). This circuit has applied the statutory standard. See United States v. Evans, 5 Cir., 1976, 526 F.2d 701, cert. denied, - U.S. -, 97 S.Ct. 62, 50 L.Ed.2d 78. Accord, United States v. Armsbury, D.Or., 1976, 408 F.Supp. 1130; United States v. McDaniels, E.D.La., 1973, 370 F.Supp. 298, aff’d sub nom., United States v. Goff, 5 Cir., 509 F.2d 825, cert. denied, 423 U.S. 857, 96 S.Ct. 109, 46 L.Ed.2d 83 (1975). As this court observed in Evans: Congress, recognizing that there would undoubtedly be error in the jury selection process that should not result in the dismissal of an indictment, left room for harmless error by providing that dismissal should lie only when there was a substantial failure to comply with the Act. Id., 526 F.2d at 705. See H.R.Rep. No. 1076, 90th Cong., 2d Sess. 15, reprinted in [1968] U.S.Code Cong. & Admin.News, pp. 1792, 1805. “Not every failure to comply with the provisions of the Jury Selection Act will constitute a ‘substantial’ failure.” Arms-bury, supra, 408 F.Supp. at 1143. A complaint must rise beyond the allegation of a mere “technical deviation” or even a number of them. See Evans, supra, 526 F.2d at 703. Determining the substantial compliance question requires that the alleged violations of the Act be weighed against the goals of the statute. See, e. g., Evans, supra, 526 F.2d at 705-06; Armsbury, supra, 408 F.Supp. at 1142. The major policy of the Act is that juries shall be “selected at random from a fair cross section of the community.” 28 U.S.C. § 1861. Discrimination is prohibited in the selection process. Id. § 1862. Toward these ends, voter lists are the primary source of jurors’ names, and the Act aims" }, { "docid": "2132844", "title": "", "text": "the applicable standard: [T]he alleged violations must be weighed against the underlying principles of the Act. A substantial violation of the Act will be found only when two important general principles are frustrated: (1) random selection of juror names and (2) use of objective criteria for determination of disqualifications, excuses, exemptions, and exclusions. In Gregory, we held that no relief was warranted where the defendants pointed to “[mjere ‘technical’ deviations from the Act,” including the clerk’s failure to prepare an alphabetical list of names drawn from the master jury wheel, because mere technical deviations “do not frustrate the obtaining of jury lists that represent a cross section of the relevant community and do not result in impermissible forms of discrimination and arbitrariness.” Id. Here, the appellants contend that the district court’s procedure violated the fundamental goals of the Act. In “permittpng] practically every prospective juror to decide for himself before trial whether or not ... to serve,” the district court, according to the appellants, was left with a jury that was not randomly drawn. The appellants rely on United States v. Kennedy, 548 F.2d 608 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977). In Kennedy, the district court was faced with a deficiency in the number of qualified jurors for a particular term. To rectify the problem, the jury clerk contacted jurors from the previous term by telephone and asked if they would be willing to perform additional service. The Fifth Circuit roundly condemned the practice, noting “[t]hat the introduction of personal predilections of prospective jurors affects the random nature of the selection process.” Id. at 612. The court cautioned that a district would substantially depart from the Act’s require ments “if it selected all its jurors by randomly drawing names from the qualified jury wheel and allowing those selected to opt in or out at will.” Id. The court was condemning the prospect of providing jurors with complete discretion on whether or not to serve. The procedure implemented by the district court in this case, however, did not permit prospective jurors to opt" }, { "docid": "13000334", "title": "", "text": "also provides that a District Judge may order that additional names be placed in the master jury wheel from time to time as necessary. . The Middle District of Florida makes the determination of exemption and excusal by means of a questionnaire sent to every person whose name is drawn from the master wheel. 28 U.S.C.A. § 1864. . § 1866. Selection and summoning of jury panels (f) When there is an unanticipated shortage of available petit jurors drawn from the qualified jury wheel, the court may require the marshal to summon a sufficient number of petit jurors selected at random from the voter registration lists, lists of actual voters, or other lists specified in the plan, in a manner ordered by the court consistent with sections 1861 and 1862 of this title. . Section 1867(a) gives a criminal defendant the right to move to dismiss the indictment or stay the proceedings against him or her on the ground of substantial failure to comply with the provisions of the Act in selecting the grand or petit jury. . § 1861. Declaration of policy It is the policy of the United States that all litigants in Federal Courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose. . Appellants also contend (1) that the Clerk’s removing from prospective service persons who have served during the previous two years, without regard to length of service, violates 28 U.S.C.A. § 1866(c) and (e), and (2) that the District’s method of returning excused persons to a list of prospective jurors violates § 1866(c). We, however, decline to address these claims, since appellants raise them for the first time on appeal. See" }, { "docid": "10882560", "title": "", "text": "three of the counties within the federal district. The defendant argued that this draw was never sanctioned by court rule and excluded rural jurors. Judge Hand reasoned that the practice had been in place for over ten years and the courts had in the past treated the practice as though imposed by a court order. Because the courts had tacitly condoned this division of the district, Judge Hand ruled that the area from which the clerk drew the jury was a lawful division. We do not find Judge Hand's decision dispositive in our case because the jury supervisor and prospective jurors here did not act under the tacit approval of the Illinois court or legislature. See also United States v. Evans, 526 F.2d 701, 706 (5th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976) (Chief Judge’s clerks did not violate Jury Selection and Service Act by failing to exempt qualified jurors). But see United States v. Kennedy, 548 F.2d 608, 609-10 (5th Cir.1977), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977) (permitting jurors to volunteer for second term of jury service violates Jury Selection and Service Act). . The Eleventh Circuit, with regard to the community standards instructions in an obscenity case, found the community should embrace that area from which the jury is drawn and selected. See United States v. Bagnell, 679 F.2d 826, 835-36 (11th Cir.1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983). . The Circuit Court Rules of Cook County state: (b) Petit jurors. The Chief Judge or his designate shall certify to the clerk of the court the number of petit jurors required each month. Persons summoned for service as petit jurors shall be called for the Monday of each week and shall serve for a period of two weeks. Any judge or associate judge may extend the term of any petit jury or jurors from time to time as justice, may require. Circuit Court Rules of Cook County 0.4(b). See also Ill.Rev.Stat., ch. 78, ¶ 32.2, § 9.2 (effective 1981). ." }, { "docid": "19710969", "title": "", "text": "28 U.S.C. § 1866(c). This section further provides that a juror may not be excluded under category (5) unless the court determines, in open court, that such an exclusion is warranted. Id. A party challenging the jury selection process under the Jury Selection and Service Act must make his challenge “before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier.” 28 U.S.C. § 1867(a). The motion must contain a “sworn statement of facts which, if true, would constitute a substantial failure to comply with the [Jury Selection and Service Act].” 28 U.S.C. § 1867(d). The Jury Selection and Service Act’s procedural requirements are designed to give the district court an opportunity to evaluate the alleged noncompliance and to correct such noncompliance before precious judicial resources are invested in a trial. Strict compliance with these procedural requirements is essential. See United States v. Kennedy, 548 F.2d 608, 612-14 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977). In the present case, we must first determine whether Ms. Contreras sufficiently complied with the procedural requirements of the Jury Selection and Service Act. The United States contends Ms. Contreras’ challenge to the district court’s jury selection process is barred by the defendants’ failure to file a sworn affidavit with their motions challenging the selection of the jury. Although Ms. Contreras concedes a sworn statement of facts was not filed with the defendants’ motions, she argues such an affidavit should be excused in this case. According to Ms. Contreras, the testimony elicited from the court and the jury administrator on the first day of trial served as an adequate substitute for the sworn affidavit requirement. See Calabrese, 942 F.2d at 222. As noted, courts have strictly enforced the procedural requirements of the Jury Selection and Service Act, including the sworn statement requirement. In Kennedy, the Fifth Circuit concluded the district court’s emergency use of volunteer jurors constituted a substantial failure to comply with the Jury Selection and Service Act. 548" } ]

[ { "docid": "629189", "title": "", "text": "9,1998, “[sjeetion 406 of ERJSA lists several transactions that are specifically prohibited and illegal per se because of their high potential for abuse---the purchase of employer securities by a plan is a prohibited transaction under § 406 because of the high risk of self-dealing.” Reich v. Hall Holding Co., 990 F.Supp. 955 at 962 (1998). The Court went on to explain, however, that § 408 of ERISA exempts an ESOP from the prohibited transaction rules if an ESOP’s purchase of employer securities is made for “adequate consideration” as defined in § 3(18) of ERISA. Id. Section 3(18) defines “adequate consideration” in the case of assets for which there is no. generally recognized market as “the fair market value of the asset as determined in good faith by the trustee or named fiduciary.” 29 U.S.C. § 1002(18). Adopting the standard first promulgated by the fifth circuit in Donovan v. Cunningham, 716 F.2d 1455 (5th Cir.1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 839 (1984), this Court held that the defendants could prove that adequate consideration was paid for the Hall Holding stock by showing that they “conducted a prudent investigation under the circumstances to determine the fair market value of the stock purchased by the ESOP.” Hall Holding, 990 F.Supp. at 963. This standard incorporates the general fiduciary responsibility provisions of ERISA § 404. Id. This Court explicitly found that “the defendants, as the ESOP’s fiduciaries, did not conduct a prudent and independent investigation to determine the fair market value” of the Hall Holding stock purchased by the Hall ESOP. Id. at *9. The Secretary argues, in its . motion for reconsideration that this finding alone warrants a holding that the defendants violated ERISA § 406. This Court, however, held in its January 9th order that this finding alone was not sufficient to find that the defendants had violated § 406. Id. Rather, by relying on language in Kuper v. Iovenko, 66 F.3d 1447 (6th Cir.1995), which analyzes ERISA § 404, this Court held that in order to prove a violation of § 406, the Secretary must establish" } ]

[ { "docid": "20644035", "title": "", "text": "and good faith are often stated as distinct requirements, they are closely intertwined. In keeping with the established meaning of “fair market value” in the area of asset valuation, the DOL’s Proposed Regulation defines the term as the price at which an asset would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, and both parties are able, as well as willing, to trade and are well-informed about the asset and the market for that asset. Proposed Regulation, 53 Fed.Reg. at 17,-634. As this definition indicates, “fair market value” is an imprecise term. See Rhodes v. Amoco Oil Co., 143 F.3d 1369, 1372 (10th Cir.1998) (“There is no universally infallible index of fair market value. There may be a range of prices with reasonable claims to being fair market value.” (internal quotation marks, citation, and alteration omitted)); Alvary v. United States, 302 F.2d 790, 795 (2d Cir.1962) (noting the “inherent inexactness of the concept of fair market value”). Whether a fiduciary has made a proper determination of “fair market value” depends on whether the parties “are well-informed about the asset and the market for that asset.” Thus, in practice, the “fair market value” inquiry overlaps considerably with the “good faith” inquiry; both are “expressly focused upon the conduct of the fiduciaries.” Cunningham, 716 F.2d at 1467 (emphasis in original). Under ERISA, the fiduciary bears the burden of proving by a preponderance of the evidence that the ESOP received “adequate consideration” for its purchase of company stock. 29 U.S.C. §§ 1002(18), 1108(e). The role of courts in reviewing the adequacy of consideration in an ERISA case is to determine whether the fiduciary can show that the price paid represented a good faith determination of the fair market value of the asset, “not to redetermine the appropriate amount for itself de novo.” Chao, 285 F.3d at 437 (internal citation and quotation marks omitted); see also Eyler v. Comm’r, 88 F.3d 445, 455 (7th Cir.1996) (“ESOP fidu ciaries will carry the burden" }, { "docid": "19580562", "title": "", "text": "is \"reasonable\" as a fee from a losing defendant may well differ from what is \"reasonable\" as a fee from an individual directly benefited by counsel's efforts. We particularly note that a \"reasonable\" fee under ERISA's attorneys' fee provision (unlike a common fund award) precludes any compensation for contingency risk. See Dague , 505 U.S. at 565-67, 112 S.Ct. 2638. But, we have previously underscored, contingent fees serve an important function in providing under-resourced litigants access to counsel and the courts. In re Abrams & Abrams, P.A. , 605 F.3d 238, 245-47 (4th Cir. 2010). Conflating statutory attorneys' fees with common fund recoveries would squarely contravene this policy. We therefore agree with the Second, Eighth, and Ninth Circuits that a statutory fee-shifting provision (or an award of fees under such a provision) does not, as a matter of law, automatically preclude an award under the common fund doctrine. Accordingly, the district court retained discretion to award supplemental attorneys' fees from the common fund. C. Having established the district court's authority to award supplemental fees, we turn to Brundle's contention that the court abused its discretion in awarding its counsel too little from the common fund. Before setting the amount of its common fund award, the district court fashioned an ad hoc process analogous to class settlement procedures under Rule 23. Brundle II , 258 F.Supp.3d at 671-72. The court ordered Brundle's counsel, B&G, to engage in a good faith effort to notify the approximately 1,800 former ESOP participants of its proposed contingency fee award. After B&G did so, the court received 59 letters objecting to a one-third contingency award. As a result of the objections, the court decided to award B&G only $ 1.5 million as a supplemental fee payable from the damages award, rather than granting counsel a full one-third ($ 9.9 million) of the ESOP's total damages recovery. In reviewing the district court's award, we note that Brundle had available a procedural mechanism designed to carefully balance the interests of counsel, plaintiffs, and other similarly situated beneficiaries from the start - namely, class certification pursuant to Rule 23." }, { "docid": "16139594", "title": "", "text": "by casting any seller activity in an ESOP transaction as fiduciary in nature. The two hats doctrine is applied to determine which seller activity is considered fiduciary. . The district court held Bruister individually liable for failure as a BAI board member to monitor the other ESOP trustees (Smith and Henry) when he appointed them and knew they breached their duties of loyalty and care. Perez, 54 F.Supp.3d at 671-72. The court cited In re Enron Corp. Sec., Derivative, & ERISA Litigation, 284 F.Supp.2d 511, 552 (S.D.Tex.2003), and Liss v. Smith, 991 F.Supp. 278, 311 (S.D.N.Y.1998). The Fifth Circuit has never recognized this theory of ERISA fiduciary liability. Courts have erroneously construed as an endorsement of the theory one statement that \"[l]ia-bility for the failure to adequately train and supervise an ERISA fiduciary arises where the person exercising supervisory authority was in a position to appoint or remove plan administrators and monitor their activities.” Am. Fed'n of Unions Local 102 Health & Welfare Fund v. Equitable Life Assurance Soc’y of the U.S., 841 F.2d 658, 665 (5th Cir.1988) (citations omitted); see, e.g., In re Enron Corp., 284 F.Supp.2d at 552. This statement, however, was made while discussing \"non-fiduciary respondeat superior liability,” Am. Fed’n of Unions, 841 F.2d at 664. The statement has no relation to the fiduciary liability at issue here. We do not approve the district court’s \"failure to monitor” holding in this case, but it is immaterial to liability. . We discuss the valuation arguments in much greater detail below. . Two additional requirements for the exception are that no commission is charged and the plan must be an eligible plan. ERISA §§ 408(e)(2)-(3), 29 U.S.C. §§ 1108(e)(2)-(3). Neither is at issue here. . There is no regulation regarding “adequate consideration.\" The Secretary proposed, but never finalized, regulations requiring that the value assigned must reflect the stock’s fair market value, and the value assigned \"must be the product of a determination made by the fiduciary in good faith.” Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed.Reg.17,632, 17,633 (proposed May 17, 1988) (to be codified at" }, { "docid": "19580563", "title": "", "text": "turn to Brundle's contention that the court abused its discretion in awarding its counsel too little from the common fund. Before setting the amount of its common fund award, the district court fashioned an ad hoc process analogous to class settlement procedures under Rule 23. Brundle II , 258 F.Supp.3d at 671-72. The court ordered Brundle's counsel, B&G, to engage in a good faith effort to notify the approximately 1,800 former ESOP participants of its proposed contingency fee award. After B&G did so, the court received 59 letters objecting to a one-third contingency award. As a result of the objections, the court decided to award B&G only $ 1.5 million as a supplemental fee payable from the damages award, rather than granting counsel a full one-third ($ 9.9 million) of the ESOP's total damages recovery. In reviewing the district court's award, we note that Brundle had available a procedural mechanism designed to carefully balance the interests of counsel, plaintiffs, and other similarly situated beneficiaries from the start - namely, class certification pursuant to Rule 23. To be fair, Brundle and another plaintiff, Halldorson, did initially seek class certification, which the district court denied. But Brundle opted not to timely appeal this denial. And although Halldorson initially sought our review, he later withdrew his appeal. See supra n.4. Had Brundle pursued class certification and prevailed, B&G could have secured attorneys' fees from the class as a whole. Although a properly certified class might not have agreed to the same one-third contingency fee that Brundle did, the district court might well have awarded a fee significantly higher than the firm's ultimate recovery here. Brundle, represented by B&G, instead opted to forego Rule 23's procedural strictures - thus avoiding \"the standards set for the protection of absent class members.\" Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 621, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In light of this choice, the district court's decision to limit the common fund award was not inequitable, as illustrated by the objections from some of the ESOP's participants. Nearly 60 of the 1,800 participants objected to" }, { "docid": "19580538", "title": "", "text": "in the private security market, began talks with Constellis management to acquire the company. Id. at 628. Initially, ACADEMI offered to purchase Constellis at an enterprise value of $ 283.3 million, in a transaction that would result in $ 10 million in cash going to the ESOP. Seeking a better offer on the ESOP's behalf, Wilmington entered into negotiations with Constellis, the Sellers, and ACADEMI. Id. at 629. Wilmington's efforts proved successful: the final transaction, which closed on July 25, 2014, effectuated a sale of all the Constellis stock to ACADEMI at an implied enterprise value of $ 288.3 million. Id. at 631. The final transaction paid $ 20 million in cash to the ESOP - double the initial $ 10 million offer - as a result of the Sellers' agreeing to write off $ 33 million of the ESOP's debt. Id. at 629. Wilmington argues that the ACADEMI sale proves that the ESOP did not overpay for Constellis seven months earlier. Relying on the first prong of DOL's proposed adequate-consideration regulations, Wilmington maintains that the ESOP paid \"fair market value\" for the Constellis stock because ACADEMI's purchase of Constellis stock implied an enterprise value of $ 288.3 million, which was within SRR's estimated range of $ 275 to $ 330 million. Wilmington contends this purchase price is of particular significance because in the intervening time Constellis assertedly suffered several business setbacks that decreased its enterprise value. This argument is unpersuasive for several reasons. The proposed DOL regulations upon which Wilmington relies provide that a trustee can prove consideration is \"adequate\" if it reflects the stock's \"fair market value\" and is \"the product of a determination made by the fiduciary in good faith.\" Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed. Reg. at 17,633. Of course, because the DOL never enacted the proposed regulations, they are not binding. And, as we have explained, courts look to the conduct of the trustee and whether it met its fiduciary obligations, not to whether the trustee arrived at a \"fair\" value. But even if we were to adopt the DOL's" }, { "docid": "20644034", "title": "", "text": "§ 2510-3(18)(b)) (“Proposed Regulation”). Although proposed regulations have no legal effect, Sweet v. Sheahan, 235 F.3d 80, 87 (2d Cir.2000), numerous circuit courts have adopted the DOL’s proposed definition of adequate consideration. See, e.g., Keach v. U.S. Trust Co., 419 F.3d 626, 636 (7th Cir.2005) (“In order to rely on the adequate consideration exemption, a trustee or fiduciary has the burden to establish that the ESOP paid no more than fair market value for the asset, and that the fair market value was determined in good faith by the fiduciary.”); Chao v. Hall Holding Co., Inc., 285 F.3d 415, 436 (6th Cir.2002) (“[T]he definition of ‘adequate consideration’ has two distinct parts. First, there is the ‘fair market value’ part, then there is the ‘as determined in good faith by the trustee’ part.”); Howard v. Shay, 100 F.3d 1484, 1488 (9th Cir.1996) (“To enforce [ERISA fiduciary rules], the court focuses not only on the merits of the transaction, but also on the thoroughness of the investigation into the merits of the transaction.”). Although fair market value and good faith are often stated as distinct requirements, they are closely intertwined. In keeping with the established meaning of “fair market value” in the area of asset valuation, the DOL’s Proposed Regulation defines the term as the price at which an asset would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, and both parties are able, as well as willing, to trade and are well-informed about the asset and the market for that asset. Proposed Regulation, 53 Fed.Reg. at 17,-634. As this definition indicates, “fair market value” is an imprecise term. See Rhodes v. Amoco Oil Co., 143 F.3d 1369, 1372 (10th Cir.1998) (“There is no universally infallible index of fair market value. There may be a range of prices with reasonable claims to being fair market value.” (internal quotation marks, citation, and alteration omitted)); Alvary v. United States, 302 F.2d 790, 795 (2d Cir.1962) (noting the “inherent inexactness of the concept" }, { "docid": "20644036", "title": "", "text": "of fair market value”). Whether a fiduciary has made a proper determination of “fair market value” depends on whether the parties “are well-informed about the asset and the market for that asset.” Thus, in practice, the “fair market value” inquiry overlaps considerably with the “good faith” inquiry; both are “expressly focused upon the conduct of the fiduciaries.” Cunningham, 716 F.2d at 1467 (emphasis in original). Under ERISA, the fiduciary bears the burden of proving by a preponderance of the evidence that the ESOP received “adequate consideration” for its purchase of company stock. 29 U.S.C. §§ 1002(18), 1108(e). The role of courts in reviewing the adequacy of consideration in an ERISA case is to determine whether the fiduciary can show that the price paid represented a good faith determination of the fair market value of the asset, “not to redetermine the appropriate amount for itself de novo.” Chao, 285 F.3d at 437 (internal citation and quotation marks omitted); see also Eyler v. Comm’r, 88 F.3d 445, 455 (7th Cir.1996) (“ESOP fidu ciaries will carry the burden of proving that adequate consideration was paid by showing that they arrived at their determination of fair market value by way of a prudent investigation in the circumstances then prevailing. Thus, the adequate consideration test focuses on the conduct of the fiduciaries in determining the price, not the price itself.” (internal citation and quotation marks omitted)). III. U.S. Trust’s Conduct as an ERISA Fiduciary The district court found that U.S. Trust failed to demonstrate that it had satisfied its obligations as an ERISA fiduciary because it produced insufficient documentation of the investigation it undertook in the months leading up to the ESOP transaction on March 15, 1994. See Henry II, 334 F.Supp.2d at 272-73. The court’s analysis focuses entirely on the February 28, 1994 meeting between U.S. Trust and HLHZ. Detailed notes taken at this meeting by Andrew Stull indicate that the parties discussed numerous aspects of HLHZ’s preliminary valuation, including, inter alia, the concerns Goldberg noted on his copy of the preliminary valuation. The district court did not challenge the authenticity of Stull’s notes." }, { "docid": "16139596", "title": "", "text": "29 C.F.R. pt. 2510). The proposed regulation went on to define how each of the two parts are satisfied. Id. at 17,637. Proposed regulations are, of course, not binding. Teweleit v. Hartford Life and Accident Ins. Co., 43 F.3d 1005, 1009-10 (5th Cir.1995). Though this regulation was never finalized, its proposed test is often ostensibly used by other courts to determine adequate consideration. See Henry v. Champlain Enters., Inc., 445 F.3d 610, 618-19 (2d Cir.2006) (Sotomayor, J.) (collecting cases and apparently adopting the test). Despite citing and ostensibly applying the Secretary's proposed conjunctive two-part test, most courts actually apply some form of the duty of care test. See, e.g., Henry, 445 F.3d at 619 (Sotomayor, J.) (\"Although fair market value and good faith are often stated as distinct requirements, they are closely intertwined.”). None of the courts \"adopting” the Secretary's test actually apply its specifically enumerated substantive requirements. E.g. 53 Fed.Reg. at 17,637, § 2510.3 — 18(b)(3)(ii) (fiduciary did not act in good faith unless all specifically listed conditions are met). . It appears Donovan was the Labor Department's impetus for proposing the regulation. See 53 Fed.Reg. at 17,633 (citing Donovan and noting that the opinion encourages the Department to adopt regulations defining adequate consideration). . The district court thus made the same mistake we identified earlier, see supra note 13, as it cited the Department of Labor’s proposed regulation as the ostensible test then actually applied a different test. See Perez, 54 F.Supp.3d at 660-61. . Notably, the Defendants’ brief rarely even cites the trial record when it attempts to address specific findings by the trial court. . Bruister and Smith do not expressly raise the \"hypothetical prudent fiduciary” concept, which posits that a breach of the duty of prudence may be overcome if their ultimate decision would have been accepted by a “hypothetical prudent fiduciary.” See Bussian, 223 F.3d at 300. To the extent that Donnelly’s valuation may have been vindicated in the court's ultimate findings here, this would affect damages, not liability. . The Secretary cites additional cases under the common law of trusts and other federal" }, { "docid": "20644033", "title": "", "text": "is made for “adequate consideration.” 29 U.S.C. § 1108(e). In transactions involving securities with no known market value, as is the case here, ERISA defines “adequate consideration” as “the fair market value of the asset as determined in good faith by the trustee or named fiduciary pursuant to the terms of the plan and in accordance with regulations promulgated by the Secretary [of Labor].” Id. at § 1002(18)(B). In 1988, the Department of Labor (“DOL”) proposed a regulation that elaborated on the definition of “adequate consideration.” The proposed regulation states: First, the value assigned to an asset must reflect its fair market value.... Second, the value assigned to an asset must be the product of a determination made by the fiduciary in good faith.... The Department will consider that a fiduciary has determined adequate consideration in accordance with section 3(18)(B) of the Act ... only if both of these requirements are satisfied. See Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed.Reg. 17,632, 17,633 (May 17, 1988) (to be codified at 29 C.F.R. § 2510-3(18)(b)) (“Proposed Regulation”). Although proposed regulations have no legal effect, Sweet v. Sheahan, 235 F.3d 80, 87 (2d Cir.2000), numerous circuit courts have adopted the DOL’s proposed definition of adequate consideration. See, e.g., Keach v. U.S. Trust Co., 419 F.3d 626, 636 (7th Cir.2005) (“In order to rely on the adequate consideration exemption, a trustee or fiduciary has the burden to establish that the ESOP paid no more than fair market value for the asset, and that the fair market value was determined in good faith by the fiduciary.”); Chao v. Hall Holding Co., Inc., 285 F.3d 415, 436 (6th Cir.2002) (“[T]he definition of ‘adequate consideration’ has two distinct parts. First, there is the ‘fair market value’ part, then there is the ‘as determined in good faith by the trustee’ part.”); Howard v. Shay, 100 F.3d 1484, 1488 (9th Cir.1996) (“To enforce [ERISA fiduciary rules], the court focuses not only on the merits of the transaction, but also on the thoroughness of the investigation into the merits of the transaction.”). Although fair market value" }, { "docid": "19580566", "title": "", "text": "1998), aff'd sub nom. Chao v. Hall Holding Co. , 285 F.3d 415 (6th Cir. 2002). Wilmington wisely does not suggest otherwise. These proposed regulations, to which courts look for guidance, provide that \"adequate\" consideration must (1) reflect the stock's \"fair market value,\" and (2) be \"the product of a determination made by the fiduciary in good faith.\" Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed. Reg. 17,632, 17,633 (proposed May 17, 1988) (to be codified at 29 C.F.R. pt. 2510). \" '[I]n practice, the 'fair market value' inquiry overlaps considerably with the 'good faith' inquiry.' \" Henry v. Champlain Enters., Inc. , 445 F.3d 610, 618-19 (2d Cir. 2006) (Sotomayor, J.) (\"Henry III \") (collecting cases). Four individuals owned 77% of Constellis stock at the time of the sale at issue here. See Brundle I, 241 F.Supp.3d at 615. Andrew Halldorson, another former Constellis employee and an ESOP participant, filed the initial complaint against Wilmington. Halldorson later amended his complaint to add Brundle as a named plaintiff. Both Halldorson and Brundle moved for class certification, which the district court denied. Following a motion for summary judgment by Wilmington, the district court dismissed Halldorson because of a release he signed barring his suit against Wilmington. Halldorson appealed both his dismissal and the denial of class certification but later withdrew his appeal of the class certification issue. Brundle did not timely appeal the denial of class certification. For this defense to apply, in addition to being for adequate consideration, (1) the sale or exchange must be of \"qualifying employer securities,\" (2) the trustee cannot charge a commission, and (3) the plan must qualify as \"an eligible individual account plan.\" 29 U.S.C. § 1108(e). All parties agree that the transaction here was for \"qualifying employer securities.\" They further agree that Wilmington did not charge a commission, and they do not dispute the district court's finding that Wilmington's fees were reasonable. See Brundle I , 241 F.Supp.3d at 617. The parties do contest, however, whether the ESOP qualifies as an \"eligible plan.\" The district court did not reach this issue," }, { "docid": "19580551", "title": "", "text": "for abuse of discretion, mindful that our review \"is sharply circumscribed, and a fee award must not be overturned unless it is clearly wrong.\" Berry v. Schulman , 807 F.3d 600, 617 (4th Cir. 2015) (internal quotation marks omitted). A. We first consider Brundle's claim that the district court abused its discretion by not awarding his counsel, Bailey & Glasser, LLP (B&G), a total of $ 9.9 million in fees under the firm's one-third contingent fee agreement with Brundle himself. The district court initially suggested that this arrangement was indeed controlling. See Brundle II , 258 F.Supp.3d at 671-72. But the court held its fee decision in abeyance to consider the views of plan participants and ultimately based its award on equity rather than contract. We can hardly find an abuse of discretion given that Brundle has no right to have the ESOP fund his own fee agreement with B&G. Brundle contends that 29 U.S.C. § 1132(a)(2) - which empowers ESOP participants and beneficiaries to bring suit on behalf of an ESOP - additionally authorizes him to enter into a legal services contract that binds the ESOP. Brundle musters no caselaw to support his interpretation of the statute, and for good reason. While § 1132(a)(2) provides Brundle the right to sue on behalf of the ESOP, neither it nor any other statute authorizes him to unilaterally bind the ESOP to a contract or fee agreement. For this very reason, the vast majority of suits on behalf of ERISA plans take the form of class actions, in which counsel can seek fees only after a class has been certified and class members have been given the opportunity to object or opt out. Though B&G has a valid contingent fee agreement with Brundle, see Venegas v. Mitchell , 495 U.S. 82, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990), it does not have a fee agreement with the ESOP. As a result, only equity provides any possible basis for a fee award in addition to the statutory fees awarded. B. After the district court received the views of some plan participants, it issued" }, { "docid": "1057366", "title": "", "text": "plan is an eligible individual account plan (as defined in section 1107(d)(3) of this title), or (B) in the case of an acquisition or lease of qualifying employer real property by a plan which is not an eligible individual account plan, or of an acquisition of qualifying employer securities by such a plan, the lease or acquisition is not prohibited by section 1107(a) of this title. 29 U.S.C. § 1108(e) (emphasis added). . The Department of Labor (\"DOL”) issued a proposed rule in 1988 to clarify the definition of \"adequate consideration.” See Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed.Reg. 17,632 (May 17, 1988) (to be codified at 29 C.F.R. § 2510-3(18)(b)). The DOL contemplated that adequate consideration has two distinct elements: First, the value assigned to an asset must reflect its fair market value as determined pursuant to proposed § 2510.3-18(b)(2). Second, the value assigned to an asset must be the product of a determination made by the fiduciary in good faith as defined in proposed § 2510.3-18(b)(3). The Department will consider that a fiduciary has determined adequate consideration in accordance with section 3(18)(B) of the Act... only if both of these requirements are satisfied. Id. at 17,633. Although the proposed regulation has yet to be approved for publication in the Code of Federal Regulations, see Unified Agenda, Adequate Consideration, 69 Fed.Reg. 37,812-01 (June 28, 2004), this court and other courts of appeals have adopted this two-part standard for evaluating the adequacy of consideration. See Eyler v. Comm'r of Internal Revenue, 88 F.3d 445, 454-55 (7th Cir.1996) (stating that a fiduciary can prove adequate consideration \"by showing they arrived at their determination of fair market value by way of a prudent investigation in the circumstances then prevailing”); Chao v. Hall Holding Co., 285 F.3d 415, 436-37 (6th Cir.2002); Howard v. Shay, 100 F.3d 1484, 1488 (9th Cir.1996); Donovan, 716 F.2d at 1467; see also Henry v. Champlain Enters., Inc., 334 F.Supp.2d 252, 269-70 & nn.7-8 (N.D.N.Y.2004). But see Herman v. Mercantile Bank, N.A., 143 F.3d 419, 421-22 (8th Cir.1998) (\"Even if a trustee fails to make" }, { "docid": "19580510", "title": "", "text": "more than adequate consideration and \"the ESOP and its participants suffered a loss under ERISA.\" See Reich , 990 F.Supp. at 961. ERISA does not define what constitutes \"adequate consideration\" under the § 1108(e) exception; the Department of Labor (DOL) has proposed, but never enacted, regulations doing so. Although courts look to these regulations for guidance, the focus of the adequate-consideration inquiry rests on the conduct of a fiduciary, as judged by ERISA's \"prudent man\" standard of care. See Perez v. Bruister , 823 F.3d 250, 263 (5th Cir. 2016) ; Henry III , 445 F.3d at 619 ; Chao , 285 F.3d at 437 ; Howard v. Shay , 100 F.3d 1484, 1489 (9th Cir. 1996). Under this standard, \"ESOP fiduciaries are subject to the duty of prudence just as other ERISA fiduciaries are.\" Fifth Third Bancorp v. Dudenhoeffer , 573 U.S. 409, 134 S.Ct. 2459, 2467, 189 L.Ed.2d 457 (2014). Thus an ESOP fiduciary, like any other ERISA fiduciary, must \"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 of a like character and with like aims.\" 29 U.S.C. § 1104(a)(1)(B). Although these fiduciary duties \"draw much of their content from the common law of trusts ... ERISA's standards and procedural protections partly reflect a congressional determination that the common law of trusts did not offer completely satisfactory protection.\" Tatum v. RJR Pension Inv. Comm. , 761 F.3d 346, 357 (4th Cir. 2014) (internal quotation marks omitted). Courts apply the \"prudent man rule ... bearing in mind the special nature and purpose of employee benefit plans.\" Id. (internal quotation marks and alterations omitted). For this reason, \"[t]he fiduciary obligations of the trustees to the participants and beneficiaries [of an ERISA] plan are ... the highest known to the law.\" Id . at 356 (alterations in original) (quoting Donovan v. Bierwirth , 680 F.2d 263, 272 n.8 (2d Cir. 1982) ). Because an ESOP fiduciary that raises an affirmative defense" }, { "docid": "19580564", "title": "", "text": "To be fair, Brundle and another plaintiff, Halldorson, did initially seek class certification, which the district court denied. But Brundle opted not to timely appeal this denial. And although Halldorson initially sought our review, he later withdrew his appeal. See supra n.4. Had Brundle pursued class certification and prevailed, B&G could have secured attorneys' fees from the class as a whole. Although a properly certified class might not have agreed to the same one-third contingency fee that Brundle did, the district court might well have awarded a fee significantly higher than the firm's ultimate recovery here. Brundle, represented by B&G, instead opted to forego Rule 23's procedural strictures - thus avoiding \"the standards set for the protection of absent class members.\" Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 621, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In light of this choice, the district court's decision to limit the common fund award was not inequitable, as illustrated by the objections from some of the ESOP's participants. Nearly 60 of the 1,800 participants objected to the proposed common fund award, explaining that they had never been informed of the case status, never agreed to B&G's representation, and never authorized the fund to pay a one-third fee. These process concerns would have been avoided upfront had Brundle persisted in his pursuit of class certification. But because he and his counsel abandoned Rule 23's class-protective procedures, equity cuts against awarding B&G the full one-third contingency fee. The district court properly weighed B&G's efforts on behalf of the ESOP - including contingency risk - against the objections from ESOP participants to determine a proper common fund award. Because we cannot say this balancing was clearly wrong, see Berry , 807 F.3d at 617, we affirm the court's fee award in full. V. For the foregoing reasons, the judgment of the district court is in all respects AFFIRMED . An employer's contributions to an ESOP thus constitute a valuable form of deferred compensation, rather than a gift to employees. See, e.g. , Reich v. Hall Holding Co. , 990 F.Supp. 955, 961 (N.D. Ohio" }, { "docid": "20644032", "title": "", "text": "the pension plan”). It is undisputed that each of the sellers in this case was a “party in interest,” see 29 U.S.C. § 1002(14)(H), (C) (defining a “party in interest” as “an employee, officer, director, ... or a 10 percent or more shareholder directly or indirectly” of “an employer any of whose employees are covered by [the] plan”), and that the transaction at issue involved the sale of CommutAir stock to the company’s ESOP. Thus, the parties agree that the March 15, 1994 sale of convertible preferred stock was a prohibited transaction under § 406. “Doubtlessly recognizing that [the] absolute prohibitions [in Section 406] would significantly hamper the implementation of ESOPs, particularly by small companies, Congress enacted in Section 408 a conditional exemption from the prohibited transaction rules for acquisition of employer securities by ESOPs and certain other plans.” Donovan v. Cunningham, 716 F.2d 1455, 1465 (5th Cir.1983). To encourage employees’ ownership of their employer company, § 408(e) permits the sale of employer stock by a party in interest to an ESOP if the purchase is made for “adequate consideration.” 29 U.S.C. § 1108(e). In transactions involving securities with no known market value, as is the case here, ERISA defines “adequate consideration” as “the fair market value of the asset as determined in good faith by the trustee or named fiduciary pursuant to the terms of the plan and in accordance with regulations promulgated by the Secretary [of Labor].” Id. at § 1002(18)(B). In 1988, the Department of Labor (“DOL”) proposed a regulation that elaborated on the definition of “adequate consideration.” The proposed regulation states: First, the value assigned to an asset must reflect its fair market value.... Second, the value assigned to an asset must be the product of a determination made by the fiduciary in good faith.... The Department will consider that a fiduciary has determined adequate consideration in accordance with section 3(18)(B) of the Act ... only if both of these requirements are satisfied. See Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed.Reg. 17,632, 17,633 (May 17, 1988) (to be codified at 29 C.F.R." }, { "docid": "1057367", "title": "", "text": "consider that a fiduciary has determined adequate consideration in accordance with section 3(18)(B) of the Act... only if both of these requirements are satisfied. Id. at 17,633. Although the proposed regulation has yet to be approved for publication in the Code of Federal Regulations, see Unified Agenda, Adequate Consideration, 69 Fed.Reg. 37,812-01 (June 28, 2004), this court and other courts of appeals have adopted this two-part standard for evaluating the adequacy of consideration. See Eyler v. Comm'r of Internal Revenue, 88 F.3d 445, 454-55 (7th Cir.1996) (stating that a fiduciary can prove adequate consideration \"by showing they arrived at their determination of fair market value by way of a prudent investigation in the circumstances then prevailing”); Chao v. Hall Holding Co., 285 F.3d 415, 436-37 (6th Cir.2002); Howard v. Shay, 100 F.3d 1484, 1488 (9th Cir.1996); Donovan, 716 F.2d at 1467; see also Henry v. Champlain Enters., Inc., 334 F.Supp.2d 252, 269-70 & nn.7-8 (N.D.N.Y.2004). But see Herman v. Mercantile Bank, N.A., 143 F.3d 419, 421-22 (8th Cir.1998) (\"Even if a trustee fails to make a good faith effort to determine the fair market value of the stock, he is insulated from liability if a hypothetical prudent fiduciary would have made the same decision anyways.” (internal quotation and citation omitted)). . The relevant parts of Durchslag’s testimony read as follows: Q. Is there anything about these inquiries that MBC received in 1995 that maltes you think that MBC or its parent, Foster & Gallagher, was at risk of significant regulatory or enforcement problems involving sweepstakes? A. No sir. MR. RHODE: I object to that question. It goes beyond the scope of his disclosed opinions. In his opinions he said “risk of great regulatory or enforcement difficulties.” THE COURT: The objection is overruled. You can cross-examine on that. A. No, I don't think that they presented risks that were serious. They were things that needed to be addressed with the attorney generals. They were. No action was taken in any of the cases, not even voluntary assurances, which is often the way those matters are resolved with the state attorney generals." }, { "docid": "19580565", "title": "", "text": "the proposed common fund award, explaining that they had never been informed of the case status, never agreed to B&G's representation, and never authorized the fund to pay a one-third fee. These process concerns would have been avoided upfront had Brundle persisted in his pursuit of class certification. But because he and his counsel abandoned Rule 23's class-protective procedures, equity cuts against awarding B&G the full one-third contingency fee. The district court properly weighed B&G's efforts on behalf of the ESOP - including contingency risk - against the objections from ESOP participants to determine a proper common fund award. Because we cannot say this balancing was clearly wrong, see Berry , 807 F.3d at 617, we affirm the court's fee award in full. V. For the foregoing reasons, the judgment of the district court is in all respects AFFIRMED . An employer's contributions to an ESOP thus constitute a valuable form of deferred compensation, rather than a gift to employees. See, e.g. , Reich v. Hall Holding Co. , 990 F.Supp. 955, 961 (N.D. Ohio 1998), aff'd sub nom. Chao v. Hall Holding Co. , 285 F.3d 415 (6th Cir. 2002). Wilmington wisely does not suggest otherwise. These proposed regulations, to which courts look for guidance, provide that \"adequate\" consideration must (1) reflect the stock's \"fair market value,\" and (2) be \"the product of a determination made by the fiduciary in good faith.\" Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed. Reg. 17,632, 17,633 (proposed May 17, 1988) (to be codified at 29 C.F.R. pt. 2510). \" '[I]n practice, the 'fair market value' inquiry overlaps considerably with the 'good faith' inquiry.' \" Henry v. Champlain Enters., Inc. , 445 F.3d 610, 618-19 (2d Cir. 2006) (Sotomayor, J.) (\"Henry III \") (collecting cases). Four individuals owned 77% of Constellis stock at the time of the sale at issue here. See Brundle I, 241 F.Supp.3d at 615. Andrew Halldorson, another former Constellis employee and an ESOP participant, filed the initial complaint against Wilmington. Halldorson later amended his complaint to add Brundle as a named plaintiff. Both Halldorson and Brundle" }, { "docid": "16139595", "title": "", "text": "665 (5th Cir.1988) (citations omitted); see, e.g., In re Enron Corp., 284 F.Supp.2d at 552. This statement, however, was made while discussing \"non-fiduciary respondeat superior liability,” Am. Fed’n of Unions, 841 F.2d at 664. The statement has no relation to the fiduciary liability at issue here. We do not approve the district court’s \"failure to monitor” holding in this case, but it is immaterial to liability. . We discuss the valuation arguments in much greater detail below. . Two additional requirements for the exception are that no commission is charged and the plan must be an eligible plan. ERISA §§ 408(e)(2)-(3), 29 U.S.C. §§ 1108(e)(2)-(3). Neither is at issue here. . There is no regulation regarding “adequate consideration.\" The Secretary proposed, but never finalized, regulations requiring that the value assigned must reflect the stock’s fair market value, and the value assigned \"must be the product of a determination made by the fiduciary in good faith.” Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed.Reg.17,632, 17,633 (proposed May 17, 1988) (to be codified at 29 C.F.R. pt. 2510). The proposed regulation went on to define how each of the two parts are satisfied. Id. at 17,637. Proposed regulations are, of course, not binding. Teweleit v. Hartford Life and Accident Ins. Co., 43 F.3d 1005, 1009-10 (5th Cir.1995). Though this regulation was never finalized, its proposed test is often ostensibly used by other courts to determine adequate consideration. See Henry v. Champlain Enters., Inc., 445 F.3d 610, 618-19 (2d Cir.2006) (Sotomayor, J.) (collecting cases and apparently adopting the test). Despite citing and ostensibly applying the Secretary's proposed conjunctive two-part test, most courts actually apply some form of the duty of care test. See, e.g., Henry, 445 F.3d at 619 (Sotomayor, J.) (\"Although fair market value and good faith are often stated as distinct requirements, they are closely intertwined.”). None of the courts \"adopting” the Secretary's test actually apply its specifically enumerated substantive requirements. E.g. 53 Fed.Reg. at 17,637, § 2510.3 — 18(b)(3)(ii) (fiduciary did not act in good faith unless all specifically listed conditions are met). . It appears Donovan" }, { "docid": "19580550", "title": "", "text": "any legal proceedings alleging Wilmington breached its fiduciary duties. As Wilmington concedes, the write-off was part of a negotiated agreement to close the ACADEMI sale, a deal wholly unrelated to the issues raised here. Again, it is reasonable to assume that the ESOP would have negotiated equally favorable (if not more favorable) terms had it paid a fair value in the first instance and thus entered the ACADEMI discussions with substantially less debt. In sum, we find no error in the district court's damages award. IV. Finally, we examine the district court's award of attorneys' fees. The court awarded Brundle's counsel $ 1,819,631.11 in statutory fees and an additional $ 1.5 million in fees from the ESOP's damages judgment. No party has presented a substantive challenge regarding the award of attorneys' fees under the fee shifting statute. Brundle challenges the $ 1.5 million in additional fees (payable from the damages awarded to the ESOP) as too small; Wilmington and Constellis, as fiduciaries for the ESOP, challenge the award as legally improper. We review that award for abuse of discretion, mindful that our review \"is sharply circumscribed, and a fee award must not be overturned unless it is clearly wrong.\" Berry v. Schulman , 807 F.3d 600, 617 (4th Cir. 2015) (internal quotation marks omitted). A. We first consider Brundle's claim that the district court abused its discretion by not awarding his counsel, Bailey & Glasser, LLP (B&G), a total of $ 9.9 million in fees under the firm's one-third contingent fee agreement with Brundle himself. The district court initially suggested that this arrangement was indeed controlling. See Brundle II , 258 F.Supp.3d at 671-72. But the court held its fee decision in abeyance to consider the views of plan participants and ultimately based its award on equity rather than contract. We can hardly find an abuse of discretion given that Brundle has no right to have the ESOP fund his own fee agreement with B&G. Brundle contends that 29 U.S.C. § 1132(a)(2) - which empowers ESOP participants and beneficiaries to bring suit on behalf of an ESOP - additionally authorizes" }, { "docid": "19580539", "title": "", "text": "the ESOP paid \"fair market value\" for the Constellis stock because ACADEMI's purchase of Constellis stock implied an enterprise value of $ 288.3 million, which was within SRR's estimated range of $ 275 to $ 330 million. Wilmington contends this purchase price is of particular significance because in the intervening time Constellis assertedly suffered several business setbacks that decreased its enterprise value. This argument is unpersuasive for several reasons. The proposed DOL regulations upon which Wilmington relies provide that a trustee can prove consideration is \"adequate\" if it reflects the stock's \"fair market value\" and is \"the product of a determination made by the fiduciary in good faith.\" Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed. Reg. at 17,633. Of course, because the DOL never enacted the proposed regulations, they are not binding. And, as we have explained, courts look to the conduct of the trustee and whether it met its fiduciary obligations, not to whether the trustee arrived at a \"fair\" value. But even if we were to adopt the DOL's proposed regulations, a trustee must satisfy both parts of the test to benefit from the adequate consideration exception. See id. Assuming arguendo that the purchase was for \"fair market value,\" we find no error in the district court's findings that Wilmington failed to prove that the share price was also \"the product of a determination made by the fiduciary in good faith.\" Furthermore, even if proving the ESOP paid \"fair market value\" sufficed to meet the requirements of § 1108(e), the facts of the ACADEMI sale do not prove that the ESOP paid only \"fair market value\" here. In fact, the district court found that the opposite was true. The court found that because ACADEMI, a private security company like Constellis, would benefit from synergies resulting from its purchase of Constellis, it would have been willing to pay significantly more for Constellis than the ESOP. Thus, that ACADEMI actually paid less for Constellis stock suggested a significantly lower fair market value for the stock at the time of the ESOP purchase. Of course, Wilmington's experts" } ]

[ { "docid": "343178", "title": "", "text": "question of whether hypnotically-refreshed testimony or statements given by an accused under the influence of hypnosis are admissible in evidence. See Rock v. Arkansas, — U.S. —, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); United States v. Robinson, 21 M.J. 937 (A.F.C.M.R.1986), pet. granted, 23 M.J. 167 (1986). Thus, although we agree with the Court of Military Review’s conclusion that the tapes were not per se inadmissible because of the influence of “hypnosis” on the interviews, we do not attempt to fashion a rule of law governing this type of testimony. 19 M.J. at 526. We are confronted, however, with the admissibility of out-of-court statements relied upon by expert witnesses in the formulation of their opinions. Mil.R.Evid. 703, Manual for Courts-Martial, United States, 1969 (Revised edition), provides that an expert opinion may be based upon “facts or data ... made known to the expert, at or before the hearing____ [T]he facts or data need not be admissible in evidence.” The military judge concluded that the psychiatrist could base his expert opinion on the videotaped interviews and indeed could discuss his reliance upon the interviews during his testimony. Mil.R.Evid. 801(c) defines hearsay as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Appellant contended at trial and now that the tapes were not being offered “for the truth of the matter” but rather for other legitimate purposes. For example, the tapes would attack the credibility of the Government expert’s opinion and bolster the defense expert’s opinion to prove that there was an underlying factual basis for his opinion. This situation has been described as a possible attempt to “ ‘smuggle’ ” hearsay evidence into the case under the guise that it is not being offered for “the truth of the matter asserted” and thus falls without the definition of hearsay. It is “suggest[ed] that Rule 403 is an appropriate tool for handling the problem. Some explanation for the expert opinion should be provided, but the judge should make sure that no party" } ]

[ { "docid": "23160904", "title": "", "text": "relevance, if any, to the issues in appellant’s case.” Indeed, the Court of Military Review found: In fact, based on the timing and the remainder of the cross-examination, it appears that trial counsel’s sole motive in eliciting the uncharged misconduct was to bring it before the court members rather than to attack the basis for the opinion. Id. at 875. Second, relying on Mil.R.Evid. 403 and the decision of this Court in United States v. Neeley, 25 MJ 105 (CMA 1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988), the Court of Military Review concluded that the military judge had not weighed the danger of unfair prejudice to the accused against any probative value that the evidence must have. 29 MJ at 875. The Court of Military Review then concluded that admission of the evidence was not harmless error as defined by Article 59(a), UCMJ, 10 USC § 859(a), and ordered a rehearing on sentence. In Neeley, we had been concerned with “smuggling” otherwise inadmissible evidence into the trial under the disguise of attacking the basis of an expert’s opinion. Mil.R.Evid. 703; 25 MJ at 106. To resolve the problem, we endorsed the recommendation in the Military Rules of Evidence Manual 596 (2d ed.1986), authored by S. Saltzburg, L. Schinasi, and D. Schlueter, to use the balancing test provided by Mil.R. Evid. 403 as a means to determine the probative value and admissibility of evidence which arguably could be relevant to attack or bolster the basis of an expert’s opinion. 25 MJ at 107. However, we are not called upon here to determine if the military judge erred in permitting the cross-examination, but rather to determine the standard by which the Court of Military Review reviews the military judge’s ruling. The Government contends that the Air Force Court of Military Review “substituted its own judgment for that of the military judge rather than determining whether his ruling was an abuse of discretion.” This argument misunderstands the role Congress intended a Court of Military Review to play in the military justice system. Article 66(c) establishes the standard" }, { "docid": "17135871", "title": "", "text": "were not raised at trial or on appeal before this Court. They are waived, and we need not address them. Mil.R.Evid. 103. In identifying and eliminating these issues, we better focus on the four narrow and specific evidentiary matters presented, and we address them seriatim. A. Admission of the Prosecution’s Profile Evidence Appellant contends the military judge erred by excluding the defense psychologist’s expert opinion that the accused did not present the profile of a pedophile. This issue arises only because the military judge first admitted the prosecution psychologist’s expert opinion of a family situation presenting the “profile” of child sexual abuse. Appellant argues the defense evidence is proper rebuttal. Recognizing this relationship between the government and defense evidence (admission of the prosecution evidence is the predicate for the claimed admission of the defense rebuttal), we are required first to evaluate admissibility of the prosecution’s profile evidence. Liberal standards for admissibility of expert testimony have been codified. Mil. R.Evid. 702-05. Trial courts have seen, therefore, a veritable explosion in use of expert testimony. Our Court is concerned with the so-called “battle of the experts,” which is a waste of time, unnecessary, or confusing. MiLR.Evid. 403 is the appropriate tool for a military judge to use to handle this problem. MiLR.Evid. 702-705 and 403 operate to establish a simple four-part test for admissibility of expert testimony: (1) Was the witness “qualified to testify as an expert”? (2) Was the testimony “within the limits of [the expert’s] expertise”? (3) Was the “expert opinion based on a sufficient factual basis to make it relevant”?, and (4) “Does the danger of unfair prejudice created by the testimony outweigh its probative value?” United States v. Stinson, 34 MJ 233, 238 (CMA 1992); United States v. Neeley, 25 MJ 105, 107 (CMA 1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988). We assume — without deciding — that the first three factors are met with regard to the prosecution psychologist Dr. Smith’s expert opinion of a family situation presenting the “profile” of child sexual abuse. However, we conclude that the military judge" }, { "docid": "23160903", "title": "", "text": "with the children. Mil.R.Evid. 703. The defense objected “to counsel bringing out circumstances which Sergeant Cole may have told him about which contained — which are uncharged misconduct for this case.” The objection was overruled. On further cross-examination, trial counsel elicited from the doctor that there was a progression of sexual activity between the accused and the victims, culminating in “oral sexual contact.” There was no reference to the dismissed charges or to any specific acts of misconduct. The questions were general and the answers somewhat ambiguous, although it is fair to say that the expert’s answers suggested that there was more sexual activity than the charges might lead one to believe existed. On final argument concerning the sentence, trial counsel did not argue that the additional acts of misconduct constituted aggravating evidence. The Court of Military Review, by a divided vote, concluded that the military judge had erred in permitting the cross-examination. 29 MJ 873 (1989). The basis for the majority view was twofold. First, the cross-examination clearly elicited evidence which “had very little relevance, if any, to the issues in appellant’s case.” Indeed, the Court of Military Review found: In fact, based on the timing and the remainder of the cross-examination, it appears that trial counsel’s sole motive in eliciting the uncharged misconduct was to bring it before the court members rather than to attack the basis for the opinion. Id. at 875. Second, relying on Mil.R.Evid. 403 and the decision of this Court in United States v. Neeley, 25 MJ 105 (CMA 1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988), the Court of Military Review concluded that the military judge had not weighed the danger of unfair prejudice to the accused against any probative value that the evidence must have. 29 MJ at 875. The Court of Military Review then concluded that admission of the evidence was not harmless error as defined by Article 59(a), UCMJ, 10 USC § 859(a), and ordered a rehearing on sentence. In Neeley, we had been concerned with “smuggling” otherwise inadmissible evidence into the trial under the" }, { "docid": "1094913", "title": "", "text": "it would be more a cause for budgetary concerns, because the batches, screen or otherwise, have to be redone every time that a quality control does not work. It is relatively uncommon, but it certainly occurs with regularity. Q: Now, without going back through the bad chromatography or extraction or discussing anything further, let me ask you this. Would any of the matters raised in those monthly reports you talked about cause a false positive to be reported? A: No. (Emphasis added.) In response to a court member’s question about the possibility of a laboratory technician with an “ax to grind” injecting “an illegal substance” into a urine sample, Dr. Sweet responded that it would be “[hjighly unlikely” because each sample is tested three times by three different technicians and all three sets of tests, both screening and confirmatory, must be positive for the same to be reported positive. Appellant argues that the military judge’s instruction erroneously required the court members to disregard Dr. Sweet’s “admissions” regarding the opinions of other experts and the errors in the testing process. On the other hand, the Government argues that Dr. Sweet did not adopt the matters referred to in cross-examination; but that, even if he did adopt them, the same evidence was presented to the court members by other means. A “military judge should give a limiting instruction” when hearsay evidence is used-on cross-examination to test an expert’s opinion. United States v. Neeley, 25 MJ 105, 107 (CMA 1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988); Mil.R.Evid. 703, Drafters’ Analysis, Manual for Courts-Martial, United States, 1984, at A22-46 (Change 3). The purpose of such an instruction is to prevent a party from “smuggling]” inadmissible hearsay into the trial by referring to it in cross-examination. 25 MJ at 107. In this case the military judge’s instruction that the court members may not “assume” a fact to be true because the expert says it is true was technically correct. Court members must determine the facts, not assume them. Regarding the learned treatises referred to on cross-examination, Dr. Sweet agreed" }, { "docid": "17135906", "title": "", "text": "Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523 (1988). . See United States v. King, 35 MJ 337 (CMA 1992); United States v. Stinson, 34 MJ 233 (CMA 1992); United States v. Rhea, 33 MJ 413 (CMA 1991); United States v. Stark, 30 MJ 328 (CMA 1990). . For example, Mil.R.Evid. 702 allows expert testimony whenever it \"will assist the trier of fact.” See, e.g., United States v. Stinson and United States v. Stark, both supra; United States v. Hammond, 17 MJ 218 (CMA 1984). Mil. R.Evid. 703 \"expands the bases upon which expert opinion may rest.” S. Saltzburg, L. Schinasi, & D. Schlueter [hereafter Saltzburg], Military Rules of Evidence Manual 738 (3d ed. 1991) (Editorial Comment); United States v. Hammond, supra. Also barriers to expert opinion, such as the ultimate-issue rule, have been abolished. Mil.R.Evid. 704; United States v. Hill-Dunning, 26 MJ 260 (CMA), cert. denied, 488 U.S. 967, 109 S.Ct. 494, 102 L.Ed.2d 531 (1988). Finally, in limited circumstances \"the underlying facts or data” may be disclosed. Mil.R.Evid. 705; United States v. Jones, 26 MJ 197, 200 (CMA 1988). . See, e.g., United States v. Partyka, 30 MJ 242 (CMA 1990); United States v. Neeley, 25 MJ 105 (CMA 1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988); United States v. Petersen, 24 MJ 283 (1987); United States v. Cameron, 21 MJ 59 (CMA 1985). . United States v. Partyka and United States v. Neeley, both supra; Saltzburg, supra at 439 (Editorial Comment). . United States v. Beltran-Rios, 878 F.2d 1208 (9th Cir.1989); United States v. Gillespie, 852 F.2d 475 (9th Cir.1988); United States v. Khan, 787 F.2d 28 (2d Cir.1986); United States v. Hernandez-Cuartas, 717 F.2d 552 (11th Cir.1983); United States v. Taylor, 716 F.2d 701 (9th Cir. 1983); State v. Percy, 146 Vt. 475, 507 A.2d 955 (1986); Sloan v. State, 70 Md.App. 630, 522 A.2d 1364 (1987). . The government tactic was to use a simple syllogism (major premise, minor premise, and conclusion) to persuade the members that appellant was a" }, { "docid": "19961562", "title": "", "text": "in the American Journal of Psychiatry to support her opinion that pedophilia did not amount to a “mental disease of defect,” and allowing the accused’s expert to be cross-examined on the material contained in it. Mil.R.Evid. 703, which is identical to the corresponding federal rule, permits consideration of information that is reasonably relied upon by other experts in arriving at sound opinions on the subject. Doctor Samek, while not familiar with the article, agreed with its premise that mental disorders potentially leading to exculpation should be “serious”, i.e., a psychosis. We consider the American Journal of Psychiatry to be in that category of learned periodicals to be called to the attention of an expert witness during cross-examination and relied upon by an expert witness during direct examination. See Mil.R.Evid. 803(18). We find no error. Air Force Regulation 160-42 deals with psychiatry in military law and requires that a written report be made whenever a psychiatric examination is conducted. See Air Force Regulation 160-42, supra, para. 4-2. As stated earlier, this examination was accomplished in October 1983, and the written report was admitted in evidence over defense objection. The appellant now urges this report was hearsay and denied him the right of confrontation of the two Sanity Board members who did not testify. This assigned error will not delay us long as we view the challenged document as a record of a regularly conducted business activity. Such reports may contain opinions and diagnosis and are admissible as an exception to the hearsay rule. See Mil.R.Evid. 803(6); accord Unit ed States v. Dyer, 752 F.2d 591 (11th Cir. 1985). Finally, appellate defense counsel-argue that the government failed to prove beyond a reasonable doubt that the appellant was sane when he committed the alleged offenses. It is, of course, well settled that the burden of proving the sanity of a particular accused beyond a reasonable doubt is upon the prosecution. United States v. Parker, 15 M.J. 146 (C.M.A. 1983). This is a factual determination to be decided by the members under proper instructions. With an insanity issue the testimony of expert witnesses is" }, { "docid": "19961557", "title": "", "text": "the ALI standard, legal insanity did not include personality disorders even when present in an abnormal degree. M.C.M.1969 (Rev), para. 120; United States v. Goodman, 7 C.M.R. 660 (A.F.B.R.1952). The presence of non-psychotic mental disorders under the current standard as being sufficient to raise an insanity defense is open to scholarly discussion. See generally United States v. Krauss, 20 M.J. 741 (N.M.C.M.R.1985); see also United States v. Haywood, 18 M.J. 562 (A.C.M.R.1984). The term “mental disease or defect” includes any abnormal condition of the mind, regardless of its medical label, that substantially affects mental or emotional processes and substantially impairs behavior controls. Air Force Regulation 160-42 (25 September 1981); Psychiatry in Military Law, para. 2-la. The appellant contends that his offenses were the result of a mental condition diagnosed as pedophilia, which is the act or fantasy of engaging in sexual activity with prepubescent children as a repeatedly preferred or exclusive method of achieving sexual excitement. Medically, it is listed by the mental health community as one of a series of disorders described as neurotic disorders, personality disorders, and other nonpsychotic mental disorders. See American Psychiatric Institute, Diagnostic and Statistical Manual for Mental Disorders (DSM), 3d Ed.1980, pages 450-451. To support the existence of a mental condition showing a lack of substantial capacity to conform his conduct to the requirements of law, the appellant offered the testimony of Doctor David M. Feazell and Doctor William R. Samek, two well-qualified psychologists. Both individuals were of the opinion that the appellant suffered from pedophilia and as a result of his condition lacked the substantial capacity to conform his conduct to the requirements of law. Both also agreed that pedophilia is not a psychotic disorder and the appellant displayed no evidence of a psychosis. Doctor Feazell stated that although the appellant knew it was wrong “to have sexual action with a child,” he could not appreciate the criminality of what he was doing. Doctor Samek is a clinical psychologist specializing in the treatment of mentally disordered sex offenders. Using approximately two hours a week group therapy, he is treating the appellant in an" }, { "docid": "12126712", "title": "", "text": "concerns one of the elements of unpremeditated murder and is certainly relevant here. Pursuant to Mil.R.Evid. 403, relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The Government argued that Dr. Grant’s testimony would have been more confusing than helpful. We disagree. Dr. Grant would have stated his conclusion that the accused did not intend to kill of inflict great bodily harm upon his son; then he would have explained his reasons for his opinion. They are: (1) the accused loved his son; (2) the lethality of shaking an infant is not commonly known; and (3) the accused fit the profile of a child abuser, and child abusers generally use force to discipline, not to kill. This is not so confusing as to warrant exclusion under MiI.R.Evid. 403. While portions of Dr. Grant’s testimony appear to constitute inadmissible profile evidence, see United States v. Banks, 36 MJ 150 (CMA 1992), much of what he had to say about the accused’s mental condition and symptoms associated with diagnosis was admissible. Mil.R.Evid. 702 allows for expert testimony “in the form of an opinion or otherwise” which “will assist the trier of fact to understand the evidence or determine a fact in issue.” To make the determination, “the proper standard is helpfulness, not absolute necessity.” United States v. Meeks, 35 MJ 64, 68 (CMA 1992), citing United States v. Nelson, 25 MJ 110, 112 (CMA 1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988); United States v. Solis, 923 F.2d 548, 550 (7th Cir.1991). The military judge concluded that Dr. Grant’s testimony would not be helpful to the triers of fact because the members could reach their own conclusions without expert testimony. While the members were capable of coming to their own conclusions without the benefit of expert testimony, we think Dr. Grant’s opinion as a forensic psychiatrist could have been of assistance. Mil.R.Evid. 703 requires that" }, { "docid": "19961559", "title": "", "text": "out-patient status. In his opinion the appellant knew right from wrong at the time of the commission of the offenses, but was unable to integrate that concept into an emotional understanding of the situation. He agreed that the appellant would not do the acts he is accused of if an adult were present. During the cross-examination of Doctor Samek, he was asked by the prosecution if he was aware of an American Journal of Psychiatry article suggesting that mental disorders potentially leading to exculpation must be serious — that is, a condition that psychiatrists usually diagnose as a psychosis. Doctor Samek was not familiar with the article, but agreed with it. Captain (Dr) Peggy M. Huddleston is a staff psychiatrist assigned to the Eglin Air Force Base Regional Hospital. The appellant was her patient and she was a member of the Sanity Board that evaluated him in October, 1983. It was her opinion and the opinion of the Sanity Board that the appellant “possibly suffered from a mental disease/defect known as pedophilia.” He had, nevertheless, the substantial capacity to appreciate the criminality of his conduct and to conform that conduct to the requirements of law. He had no psychiatric condition that would warrant separation through military medical channels. It was Doctor Huddleston’s opinion that pedophilia is a non-psychotic mental disorder that does not grossly and demonstrably impair a person’s perception or understanding of reality. She is familiar with the American Journal of Psychiatry article on this general subject and considers it an attempt to bridge the communication gap between the medical and legal communities. Regarding Doctor Huddleston’s testimony, appellate defense counsel argue the trial judge erred by allowing her to state that pedophilia did not meet the definition of “mental disease or defect” as contemplated in military law. In their view this was tantamount to the prosecution tendering her as an expert on the “legal definition of mental disease or defect” and thus she rendered an ultimate legal conclusion under the guise of medical diagnosis. Taken without change from Federal Rules of Evidence 704, Mil.R.Evid. 704 states that testimony in" }, { "docid": "12126714", "title": "", "text": "the facts or data which are the bases of the expert’s opinion be “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Dr. Grant based his opinion on “OSI reports, the accused’s mental health records, the Family Service Center records, the Family Advocacy records, the two sanity boards,” conversations with the accused’s supervisor, his First Sergeant, his first wife, and others in the accused’s squadron, as well as 20 hours of conversation with the accused. The military judge was concerned about the bases for Dr. Grant’s testimony. He noted much of the information Dr. Grant obtained was inadmissible hearsay; however, Mil. R.Evid. 703 specifically provides that the facts on which the expert’s opinion is based “need not be admissible in evidence.” We think the foundation of Dr. Grant’s testimony was sufficient. Finally, turning to Mil.R.Evid. 704, the testimony “is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” See United States v. Hill-Dunning, 26 MJ 260 (CMA 1988), cert denied, 488 U.S. 967, 109 S.Ct. 494, 102 L.Ed.2d 531 (1988). Cf. United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986); United States v. Arruza, 26 MJ 234, 237 (CMA 1988); see also 26 MJ at 239 (Sullivan, J., concurring in the result) (agreeing that experts may not give their opinion as to a witness’ truthfulness), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989). We agree with the Court of Military Review that the military judge abused his discretion in granting the Government’s motion to prevent Dr. Grant from testifying. See United States v. Houser, 36 MJ 392, 397 (CMA), cert. denied, — U.S.-, 114 S.Ct. 182, 126 L.Ed.2d 141 (1993). The Military Rules of Evidence liberally allow for expert testimony to assist the trier of fact. Accordingly, the certified issue is answered in the negative. The decision of the United States Air Force Court of Military Review setting aside the conviction for unpremeditated murder and the sentence is affirmed. Chief Judge SULLIVAN and Judges CRAWFORD, GIERKE and" }, { "docid": "12143697", "title": "", "text": "by the military judge. United States v. Court, 24 M.J. 11 (CMA 1987); United States v. Belz, 20 M.J. 33 (CMA 1985). According to the Court of Military Review, appellant was not prejudiced by this error because his defense was predicated on the lack of mental responsibility, and “[ejvidence of his good military character would have had no impact on a diagnosis of pedophilia.” 20 M.J. at 944. We disagree with this analysis. When an accused defends on grounds of insanity and offers evidence of his good character, he is contending that his acts must have resulted from insanity because — as demonstrated by his past good character — he would never have committed a crime had he been in his right mind. How convincing this contention may be will vary with the facts of the case; but, unlike the court below, we see no reason why the evidence of good character is per se inadmissible. Here, the judge’s error in excluding the evidence would normally be subjected to the analysis for prejudice prescribed by United States v. Weeks, 20 M.J. 22 (CMA 1985). Certainly, in this hotly contested case, appellant would have a strong argument that he had been prejudiced by this error, if no other evidentiary errors had occurred. However, we need not consider this question, because we have already ruled that admission of the sanity-board report was prejudicial error. V The decision of the United States Air Force Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered. Judge SULLIVAN concurs. COX, Judge (concurring in the result): Paragraph 122c, Manual for Courts-Martial, United States, 1969 (Revised edition)(original version), clearly made inadmissible “opinions as to the mental condition of the accused contained in” reports of sanity boards. These opinions are not made admissible by the Military Rules of Evidence, and they should not be made admissible as substantive evidence unless the accused has the opportunity to confront and examine the witness. See" }, { "docid": "12143700", "title": "", "text": "appellant “laek[ed] the substantial capacity to appreciate the criminality of his conduct” or “to conform his conduct to the requirements of the law.” Are these legal conclusions or medical opinions? They sound like matters of law to me. My reading of Dr. Huddleston’s testimony and what I understand to be the Government’s theory of relevance with regard to the Diagnostic and Statistical Manual of the American Psychiatric Association was to demonstrate that, even if the members accepted the testimony of Drs. Feazell and Samek, the diagnosis that appellant “suffered from a mental disease or deficiency of the variety known as pedophilia” would not “be of the severity ... of conditions that psychiatrists diagnose as psychoses.” Therefore, neither would be a defense for appellant’s criminal conduct. “As used in this standard, the terms ‘mental disease or mental retardation’ include only those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality.” See American Psychiatric Association Statement on the Insanity Defense — Insanity Defense Work Group, 140 Am.J. of Psychiatry 685 (June 1983). In other words, if the defense experts were allowed to opine that appellant was entitled to be acquitted by reason of pedophilia and the mental disease or defect associated therewith, the Government was entitled to show that the opinions were not generally accepted by psychiatrists and especially not accepted by the American Psychiatric Association. Furthermore, the Government was entitled to do this through cross-examination, learned treatises, or the testimony of its own expert. In summary, society has deemed it necessary to forgive the criminal conduct of those persons who are insane. If we are going to permit behavioral scientists to testify about responsibility for criminal conduct, these opinions should be tested in light of the prevailing legal standards. If a behavioral scientist does not have the expertise to know what conduct gives rise to the defense, he has no business expressing any opinions. Otherwise, his testimony does not “assist the trier of fact to understand the evidence or to determine a fact in issue.” Mil.R.Evid. 702. Accordingly, I do not join the majority" }, { "docid": "12143698", "title": "", "text": "United States v. Weeks, 20 M.J. 22 (CMA 1985). Certainly, in this hotly contested case, appellant would have a strong argument that he had been prejudiced by this error, if no other evidentiary errors had occurred. However, we need not consider this question, because we have already ruled that admission of the sanity-board report was prejudicial error. V The decision of the United States Air Force Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered. Judge SULLIVAN concurs. COX, Judge (concurring in the result): Paragraph 122c, Manual for Courts-Martial, United States, 1969 (Revised edition)(original version), clearly made inadmissible “opinions as to the mental condition of the accused contained in” reports of sanity boards. These opinions are not made admissible by the Military Rules of Evidence, and they should not be made admissible as substantive evidence unless the accused has the opportunity to confront and examine the witness. See United States v. Broadnax, 23 M.J. 389, 395-97 (CMA 1987) (Cox, J., concurring). On the other hand, Mil.R.Evid. 703, Manual, supra, recognizes that one expert might well rely on the opinions of other experts in the formulation of one’s own opinion. However, these outside opinions cannot be “smuggle[d]” before the fact-finder as substantive evidence. See United States v. Neeley, 25 M.J. 105, 107 (CMA 1987), cert. denied, — U.S. -, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988); United States v. Stark, 24 M.J. 381 (CMA 1987), cert. denied, — U.S. -, 108 S.Ct. 750, 98 L.Ed.2d 763 (1988). I am somewhat confused by the resolution of Granted Issue I in the majority opinion. As I read the testimony of the two defense experts, Dr. Feazell and Dr. Samek, both were allowed to — and indeed did — express “legal” opinions. For example, Dr. Feazell opined that appellant did not “appreciate the criminality of what he was doing.” Dr. Samek testified that as a result of his diagnosis of pedophilia, he was of the opinion that" }, { "docid": "12143669", "title": "", "text": "THE SANITY OF THE ACCUSED, THEREBY PERMITTING HEARSAY TO BE GIVEN TO THE COURT MEMBERS AND DENYING THE ACCUSED HIS RIGHT TO CROSS-EXAMINE TWO OF THE OFFICERS WHO NEVER TESTIFIED AT TRIAL. IV WHETHER APPELLANT WAS ERRONEOUSLY DENIED AN OPPORTUNITY TO PRESENT EVIDENCE OF GOOD MILITARY CHARACTER IN DEFENSE OF CHARGES OF CONDUCT UNBECOMING AN OFFICER. We resolve these issues against the Government. I The Government’s case-in-chief consisted of testimony of the victim, her sister, and another child. After the prosecution had rested, the civilian defense counsel made a brief opening statement referring to an insanity defense. The first defense witness was Dr. David Feazell, a clinical psychologist, who had examined Major Benedict and had concluded that he “suffered from a mental disease or deficiency of the variety known as pedophilia, which is a mental disorder involving an unusual sexual attraction and expression repeatedly with young — in .the case of Major Benedict —young, female children, preadolescents.” Because of this disease, appellant, at the time of the alleged crimes, “lack[ed] the substantial capacity to conform his conduct to the requirements of the law.” According to Dr. Feazell, pedophilia could be either “homosexual, involving children of the same sex” or “heterosexual, involving children of the opposite sex of the offender”; and in Benedict’s case, it was the latter. It was also the opinion of this expert that Benedict had not “appreciate[d] the criminality of what he was doing.” Feazell had referred appellant to Dr. William Samek. During the extensive cross-examination, Dr. Feazell was asked if he were “familiar with” the Diagnostic and Statistical Manual of the American Psychiatric Association in its Third Revision (DSM III). He answered in the affirmative and explained that this Manual was “an exhaustive classification of mental diseases and disorders with explanations and criteria for the diagnosis of each.” According to Dr. Feazell, pedophilia was classified in DSM III as a “paraphelia.” Over defense objection, he explained that a decision to place a disorder in the Manual “is arrived at through studies of large groups of psychiatrists involving what they believe is the state of the art" }, { "docid": "12143672", "title": "", "text": "research support it? That's — it’s a long, complicated process by a large group of people deliberating.” Moreover, revisions have been made since the first edition of the Manual; but he did not know whether “the revision process is underway now for a current revision.” On redirect, Dr. Feazell testified that DSM III is “the primary, authoritative manual in the ... [diagnosis and classification of mental disorders”; and that Benedict had “a mental disease or defect”— namely, pedophilia. Dr. William Samek, “a clinical psychologist, specializing in the treatment of mentally disordered sex offenders,” testified next for the defense. His qualifications were extensive; he had prepared 4,000 or more written reports on behalf of various courts and had testified “between four and five hundred times” in various courts. He had examined appellant, who was presently his patient in a treatment program. In his opinion Major Benedict had “a mental disease or defect” at the time of the alleged crimes; and “the clinical psychiatric diagnosis of that disease” was pedophilia. Because of this “mental disease or defect,” Benedict “lackfed] the substantial capacity to appreciate the criminality of his conduct” or “to conform his conduct to the requirements of the law.” Samek had discussed his diagnosis with Dr. Feazell, although he arrived at it “independently.” This expert explained that being able to “appreciate the criminality of” one’s actions “has to do with an emotional understanding and not just your thoughts,” while “[k]nowing right from wrong has to do with a rational, factual understanding.” Asked about the DSM III which had been published by the American Psychiatric Association in 1980, Dr. Samek replied: It is published by the Psychiatry Society, it’s purely a psychiatric document that is considered in the psychiatric and the psychological community as “the Bible” in terms of diagnosis. There are people who diagnose, using the old, preferring the old DSM. In any field like this, we’ve got a lot of educated people, and you have a lot of opinions, but in terms of a standard reference, it’s unquestionably the reference, it’s used in courts, it’s used in health insurance claims," }, { "docid": "12126713", "title": "", "text": "v. Banks, 36 MJ 150 (CMA 1992), much of what he had to say about the accused’s mental condition and symptoms associated with diagnosis was admissible. Mil.R.Evid. 702 allows for expert testimony “in the form of an opinion or otherwise” which “will assist the trier of fact to understand the evidence or determine a fact in issue.” To make the determination, “the proper standard is helpfulness, not absolute necessity.” United States v. Meeks, 35 MJ 64, 68 (CMA 1992), citing United States v. Nelson, 25 MJ 110, 112 (CMA 1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988); United States v. Solis, 923 F.2d 548, 550 (7th Cir.1991). The military judge concluded that Dr. Grant’s testimony would not be helpful to the triers of fact because the members could reach their own conclusions without expert testimony. While the members were capable of coming to their own conclusions without the benefit of expert testimony, we think Dr. Grant’s opinion as a forensic psychiatrist could have been of assistance. Mil.R.Evid. 703 requires that the facts or data which are the bases of the expert’s opinion be “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Dr. Grant based his opinion on “OSI reports, the accused’s mental health records, the Family Service Center records, the Family Advocacy records, the two sanity boards,” conversations with the accused’s supervisor, his First Sergeant, his first wife, and others in the accused’s squadron, as well as 20 hours of conversation with the accused. The military judge was concerned about the bases for Dr. Grant’s testimony. He noted much of the information Dr. Grant obtained was inadmissible hearsay; however, Mil. R.Evid. 703 specifically provides that the facts on which the expert’s opinion is based “need not be admissible in evidence.” We think the foundation of Dr. Grant’s testimony was sufficient. Finally, turning to Mil.R.Evid. 704, the testimony “is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” See United States v. Hill-Dunning, 26 MJ 260 (CMA" }, { "docid": "1094914", "title": "", "text": "in the testing process. On the other hand, the Government argues that Dr. Sweet did not adopt the matters referred to in cross-examination; but that, even if he did adopt them, the same evidence was presented to the court members by other means. A “military judge should give a limiting instruction” when hearsay evidence is used-on cross-examination to test an expert’s opinion. United States v. Neeley, 25 MJ 105, 107 (CMA 1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988); Mil.R.Evid. 703, Drafters’ Analysis, Manual for Courts-Martial, United States, 1984, at A22-46 (Change 3). The purpose of such an instruction is to prevent a party from “smuggling]” inadmissible hearsay into the trial by referring to it in cross-examination. 25 MJ at 107. In this case the military judge’s instruction that the court members may not “assume” a fact to be true because the expert says it is true was technically correct. Court members must determine the facts, not assume them. Regarding the learned treatises referred to on cross-examination, Dr. Sweet agreed with the writings of Dr. Dubowski and Dr. Fredericks regarding the pitfalls of drug testing. Those writings were not ex-cludable as hearsay but were admissible as part of Dr. Sweet’s expert testimony. See Mil.R.Evid. 803(18) (learned treatises called to attention of expert or relied upon by expert not excluded by hearsay rule). To the extent that the military judge’s instruction precluded the members from considering those writings for their truth, it was erroneous. Regarding the quality-control reports, much of Dr. Sweet’s testimony simply defined terms such as “unacceptable blinds” and “poor chromatography.” He did not testify to or adopt the statistics or conclusions in the reports, and defense counsel did not offer the reports in evidence. Therefore, the statistics and conclusions recited in the reports were hearsay and properly limited by the military judge’s instruction. Dr. Sweet did testify from his own knowledge about three facts addressed in the quality-control reports: (1) the problem involving the peak-recognition software; (2) the fact that some urine samples cannot satisfactorily be tested by chromatography; and (3) the fact" }, { "docid": "19961558", "title": "", "text": "disorders, personality disorders, and other nonpsychotic mental disorders. See American Psychiatric Institute, Diagnostic and Statistical Manual for Mental Disorders (DSM), 3d Ed.1980, pages 450-451. To support the existence of a mental condition showing a lack of substantial capacity to conform his conduct to the requirements of law, the appellant offered the testimony of Doctor David M. Feazell and Doctor William R. Samek, two well-qualified psychologists. Both individuals were of the opinion that the appellant suffered from pedophilia and as a result of his condition lacked the substantial capacity to conform his conduct to the requirements of law. Both also agreed that pedophilia is not a psychotic disorder and the appellant displayed no evidence of a psychosis. Doctor Feazell stated that although the appellant knew it was wrong “to have sexual action with a child,” he could not appreciate the criminality of what he was doing. Doctor Samek is a clinical psychologist specializing in the treatment of mentally disordered sex offenders. Using approximately two hours a week group therapy, he is treating the appellant in an out-patient status. In his opinion the appellant knew right from wrong at the time of the commission of the offenses, but was unable to integrate that concept into an emotional understanding of the situation. He agreed that the appellant would not do the acts he is accused of if an adult were present. During the cross-examination of Doctor Samek, he was asked by the prosecution if he was aware of an American Journal of Psychiatry article suggesting that mental disorders potentially leading to exculpation must be serious — that is, a condition that psychiatrists usually diagnose as a psychosis. Doctor Samek was not familiar with the article, but agreed with it. Captain (Dr) Peggy M. Huddleston is a staff psychiatrist assigned to the Eglin Air Force Base Regional Hospital. The appellant was her patient and she was a member of the Sanity Board that evaluated him in October, 1983. It was her opinion and the opinion of the Sanity Board that the appellant “possibly suffered from a mental disease/defect known as pedophilia.” He had, nevertheless," }, { "docid": "12143699", "title": "", "text": "United States v. Broadnax, 23 M.J. 389, 395-97 (CMA 1987) (Cox, J., concurring). On the other hand, Mil.R.Evid. 703, Manual, supra, recognizes that one expert might well rely on the opinions of other experts in the formulation of one’s own opinion. However, these outside opinions cannot be “smuggle[d]” before the fact-finder as substantive evidence. See United States v. Neeley, 25 M.J. 105, 107 (CMA 1987), cert. denied, — U.S. -, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988); United States v. Stark, 24 M.J. 381 (CMA 1987), cert. denied, — U.S. -, 108 S.Ct. 750, 98 L.Ed.2d 763 (1988). I am somewhat confused by the resolution of Granted Issue I in the majority opinion. As I read the testimony of the two defense experts, Dr. Feazell and Dr. Samek, both were allowed to — and indeed did — express “legal” opinions. For example, Dr. Feazell opined that appellant did not “appreciate the criminality of what he was doing.” Dr. Samek testified that as a result of his diagnosis of pedophilia, he was of the opinion that appellant “laek[ed] the substantial capacity to appreciate the criminality of his conduct” or “to conform his conduct to the requirements of the law.” Are these legal conclusions or medical opinions? They sound like matters of law to me. My reading of Dr. Huddleston’s testimony and what I understand to be the Government’s theory of relevance with regard to the Diagnostic and Statistical Manual of the American Psychiatric Association was to demonstrate that, even if the members accepted the testimony of Drs. Feazell and Samek, the diagnosis that appellant “suffered from a mental disease or deficiency of the variety known as pedophilia” would not “be of the severity ... of conditions that psychiatrists diagnose as psychoses.” Therefore, neither would be a defense for appellant’s criminal conduct. “As used in this standard, the terms ‘mental disease or mental retardation’ include only those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality.” See American Psychiatric Association Statement on the Insanity Defense — Insanity Defense Work Group, 140 Am.J. of Psychiatry 685" }, { "docid": "23579258", "title": "", "text": "Mil. R.Evid. 611(a). SULLIVAN, Chief Judge (concurring): I agree with the principal opinion in this case as well as the comment of Judge Wiss. WISS, Judge (concurring): I fully concur in the principal opinion and write only to comment on two aspects of it. Analogizing testimony regarding rape-trauma syndrome to testimony about child sexual abuse, see United States v. Suarez, 35 MJ 374 (CMA 1992); United States v. Nelson, 25 MJ 110 (CMA 1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1016, 98 L.Ed.2d 982 (1988), the principal opinion concludes that evidence of rape-trauma syndrome is not necessarily limited to rebuttal and may be introduced during the prosecution’s case-in-chief. That is not an issue here, since Dr. Remer’s testimony came in during the prosecution’s case-in-chief but in obvious rebuttal to implications raised during the defense’s earlier cross-examination of the prosecutrix. See n. 1, supra. However, I have no quarrel with that conclusion. Cf Estelle v. McGuire, — U.S. -,---, 112 S.Ct. 475, 483-84, 116 L.Ed.2d 385 (1991). I do caution, though, that relevance of testimony on rape-trauma syndrome seems to be limited to issues of whether there was consent and whether a rape did, in fact, occur. See McCord, The Admissibility of Expert Testimony Regarding Rape Trauma Syndrome in Rape Prosecutions, 26 B.C.L.Rev. 1143, 1197 (1985), cited in United States v. Carter, 26 MJ 428, 429 (CMA 1988). Where one or the other or both are in dispute in the trial, it would seem unimportant when, during the trial, such expert testimony was offered. If, however, the trial revolves solely around the identity of the rapist, for example, the military judge should be especially cautious to ensure that the marginal probative value of rape-trauma-syndrome testimony under those circumstances is not “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members____” Mil.R.Evid. 403, Manual for Courts-Martial, United States, 1984. See United States v. Hebert, 35 MJ 266, 270 (CMA 1992) (Wiss, J., concurring in part and in the result); United States v. Warren, 6 USCMA 419, 423, 20 CMR 135, 139 (1955). As to the" } ]

[ { "docid": "22639263", "title": "", "text": "up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. Because the defendant has, by the decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation. This Court has recognized these principles before. In Hughes v. United States, 342 U. S. 353 (1952), the Government sought to construe a consent decree that gave the defendant the option of selling his stock or putting it in a voting trust as requiring him to sell the stock within a reasonable time even though he chose the voting trust alternative, because the pro-competitive purpose of the decree would otherwise be frustrated. The Court responded: “It may be true as the Government now contends that Hughes’ large block of ownership in both types of companies endangers the independence of each. Evidence might show that a sale by Hughes is indispensable if competition is to be preserved. However, in section V the parties and the District Court provided their own detailed plan to neutralize the evils from such ownership. Whatever justification there may be now or hereafter for new terms that require a sale of Hughes’ stock, we think there is no fair support for reading that requirement into the language of section V.” 342 U. S., at 357. In United States v. Atlantic Refining Co., 360 U. S. 19 (1959), the Government sought an" } ]

[ { "docid": "15448710", "title": "", "text": "decrees enunciated by the Supreme Court in the cases above should not govern the issue which confronts the court here. In United States v. Armour & Co., 402 U.S. 673, 91 S.Ct.. 1752, 29 L.Ed.2d 256 (1971), the Supreme Court held that consent decrees should be treated as contracts for purposes of construction. Rejecting the government’s argument that the consent decree should be construed to prevent the same kinds of anticompetitive practices or effects that the government sought to enjoin in its complaint, the Court stated: Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. Because the defendant has, by the decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation. Id. at 681-82, 91 S.Ct. at 1757. The Court, however, later disclaimed any rigid rule that would preclude any resort to extrinsic evidence to explain the meaning of a consent decree in case of doubt: Since a consent decree or" }, { "docid": "2053133", "title": "", "text": "Decree, which provides that \"[t]his Court shall retain jurisdiction to supervise the activities of the Administrator and to entertain any future applications by the Administrator or the parties.\" The court approved the rules as set forth in Exhibit A of its opinion, 803 F.Supp. at 800-806. IBT appeals, challenging rules D(2), E(2) and (3), F(1), (2) and (5), H(3)(b), (3)(e), (6) and (7), N(2), and O. DISCUSSION A. Court Interpretation of Consent Decrees Consent decrees, while they are ju-~3icial decrees subject to enforcement by the court, nonetheless are agreements between parties to litigation that \"should be construed basically as contracts.\" United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37, 95 S.Ct. 926, 934, 43 L.Ed.2d 148 (1975). Consent decrees are \"entered into by parties to a case after careful negotiation has produced agreement on their precise terms,\" and therefore \"the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.\" United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). However, a court also may consider, as it would in construing a contract, normal aids to construction such as \"the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree.\" ITT Continental Baking, 420 U.S. at 238, 95 S.Ct. at 935. B. IBT's ObjectionS to the Challenged Rules Generally IBT argues that the district court, in approving the challenged rules, improperly treated the Consent Decree as an organic document giving the court broad authority to fashion rules to fulfill its purpose. `While we agree that parts of two of the rules cannot be found in the four corners of the Consent Decree, and believe it necessary to clarify certain others to ensure that they are applied in a manner consistent with the decree, we reject the IBT's argument as to most of the challenged rules. The section of the Consent Decree pertaining to" }, { "docid": "21919071", "title": "", "text": "United States v. ITT Continental Baking Co., 420 U.S. 223, 236-38, 95 S.Ct. 926, 934-35, 43 L.Ed.2d 148 (1975). Courts must be cautious, therefore, to confine themselves to the agreement the parties consented to have entered, remembering that in most instances the defendant has neither admitted nor been found by a court to have committed any wrongdoing. As the Supreme Court explained in United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971) (footnote omitted): Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of á consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. The “four corners” rule of Armour is consistent with the ordinary principle of contract construction that resort to extrinsic evidence is permissible only when the instrument itself is ambiguous, although frequently the circumstances surrounding its formation will be relevant to its meaning. “Such reliance does not in any way depart from the ‘four corners’ rule of Armour.” ITT Continental Baking, 420 U.S. at 238, 95 S.Ct. at 935. Interpretation of a contract is ordinarily a question of law for the courts. But when the contract is ambiguous, extrinsic evidence may be required to discern its meaning, transforming the question into one of fact to be resolved by the fact finder," }, { "docid": "59250", "title": "", "text": "court order, they are also a form of contract to be construed according to basic principles of contract interpretation. See Goluba v. School Dist. of Ripon, 45 F.3d 1035, 1037-38 (7th Cir.1995). See also United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975); United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971) (“[T]he scope of a consent decree must be discerned within its four corners.”). Thus, where a decree is “clear on its face, it is neither necessary nor appropriate to consider ... extrinsic evidence.” Rumpke of Indiana, Inc. v. Cummins Engine Co., 107 F.3d 1235, 1243 (7th Cir.1997) (extrinsic evidence not considered because CERCLA consent decree was unambiguous). However, even “when the terms of the instrument are clear,” extrinsic evidence may be used in the rare situation where a latent ambiguity exists, meaning the terms of the contract “cannot be applied because they do not fit the factual circumstances to which they are addressed.” Ohio Cos. Group of Ins. Cos. v. Gray, 746 F.2d 381, 383-84 (7th Cir.1984). See also In re Herwig, 237 Ill.App.3d 737, 178 Ill.Dec. 641, 645, 604 N.E.2d 1164, 1168 (1992). Our task is to decide from the face of the Decree whether it was designed to supersede the 1977 Plan as a whole, for purposes of setting out the District’s obligations under Title VI. If so, paragraph 7 of the introduction to the Decree makes the Decree “final and binding” on all such issues, and as the district courts 'found in Asllani, 845 F.Supp. at 1223, and Schnettler, 1994 WL 142958, at *6-7, the 1980 Decree would be the “written modification” of the 1977 Plan for which the parties made provision. If, on the other hand, the 1980 Decree is ambiguous (either on its face or latently), so that one might reasonably construe it as superseding only parts of the 1977 Plan, we should turn to the extrinsic evidence the parties have offered and evaluate the district court’s summary judgment decision in that light. Although" }, { "docid": "15420945", "title": "", "text": "the district court applied an incorrect standard for terminating Part XI of the consent decree. In particular, appellant argues that the “public interest” standard, which the district court used, was inapplicable here because Part XI expressly stated its own standard for termination, which was that Cyanamid must demonstrate that the effect of the termination “will not be substantially to lessen competition or tend to create a monopoly.” This language is nearly identical to that used in Section 7 of the Clayton Act, 15 U.S.C. § 18 (1976 & Supp. V 1981). Consent decrees have been recognized as having attributes of both contracts and judicial acts. In United States v. ITT Continental Baking Co., 420 U.S. 223, 236 n. 10, 95 S.Ct. 926, 934 n. 10, 43 L.Ed.2d 148 (1975), the Court stated: While [consent decrees] are arrived at by negotiation between the parties and often admit no violation of law, they are motivated by threatened or pending litigation and must be approved by the court.... Because of this dual character, consent decrees are treated as contracts for some purposes but not for others. See United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). For purposes of interpreting the meaning of a consent decree, the Supreme Court has tended to apply principles of contract law. One such principle is to treat the decree as an embodiment of the intent of the parties. This view is reasonable, since such decrees are often entered without proof of any violations and “cannot be said to have a purpose” in and of themselves; rather, “the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.” Id. (footnote omitted). Thus, the Court has observed that “the scope of a consent decree must be discerned within its four corners” and “the instrument must be construed as it is written,” id. at 682, 91 S.Ct. at 1757, and “without reference to the legislation the Government originally sought to" }, { "docid": "9598032", "title": "", "text": "do not establish the trial court is “better positioned” than the appellate court to decide an issue. We decline to read City & County of Denver more broadly than its analysis. In this ease, the issue for review involves the construction of the negotiated settlement based on the four corners of the consent decree. In such an inquiry, the reviewing court and the district court are equally able to construe the parties’ agreement. Because this case involves none of the circumstances allowing a departure from independent appellate review of consent decrees, the standard is de novo. The principles of construction of the consent decree are not disputed. “[A] consent decree or order is to be construed for enforcement purposes basically as a contract,” United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975); the terms of the decree and the respective obligations of the parties must be found within the four corners of the consent decree, United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971) (“[T]he decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.... [T]he instrument must be construed as it is written” (emphasis in original)); and the contract law of the State of Wyoming is applicable. Air Line Stewards & Stewardesses Ass’n v. Trans World Airlines, Inc., 713 F.2d 319, 321 (7th Cir.1983). III. INTERPRETATION OF THE DECREE The consent decree is lengthy, complex, and anything but a model of clarity. The parties have narrowed the dispute to three sections of the consent decree, each of which we address in turn. A. Effect of Decree. The consent decree contains a section entitled “Effect of Decree,” the applicable portion of which reads as follows: Entry of this Decree and compliance with and completion of the requirements contained herein shall constitute full settlement of the claims and the complaints" }, { "docid": "1292453", "title": "", "text": "applicant’s or recipient’s health and well-being.” More than four years after the decree was entered the township’s board of trustees repealed the ordinance under which Emergency Assistance is provided. The plaintiffs, claiming that this repeal was contrary to the clause in the decree that we have italicized, petitioned the district court for an order holding the township and its officers in civil contempt of the decree. The district court (a different judge from the one who had approved the decree) held that the repeal of emergency assistance did not violate the decree and dismissed the petition, and the plaintiffs have appealed. The dismissal of the contempt petition was a final order, appealable to this court under 28 U.S.C. § 1291, and the appeal properly brings up to us the question of the meaning of the consent decree. See, e.g., Sportmart, Inc. v. Wolverine World Wide, Inc., 601 F.2d 313, 315-16 (7th Cir. 1979). It is quite true, as the plaintiffs argue, that the italicized' clause, standing alone, requires the township to adhere, at least substantially, to the standards set forth in the exhibit to the decree, and that the re- • peal of emergency assistance is not substantial compliance. But it is not true that we must read one clause in one paragraph of the decree in isolation from the rest of the paragraph and the rest of the decree without reference to the decree’s evident purpose. We accept unreservedly the statement in United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971) (emphasis in original), that a consent “decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other) and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” But this language must be read in context" }, { "docid": "18816053", "title": "", "text": "such imbalance in each project.” On the other hand, paragraph l.A. of Exhibit C establishes a target racial balance of 33%. The Commission asserts that the 33% figure reflected the initial calculation, but that pursuant to Exhibit A, that figure was to be adjusted each year following the annual recalculation. The Housing Authority claims that it intended for the goal to be fixed at 33% and understood the Commission to be in accord\" because the Commission never indicated to the Housing Authority that its use of a 33% figure each year was incorrect, despite the fact that the Authority sent its figures to the Commission annually and despite the fact that Commission staff had conducted compliance/monitoring sessions at the Authority’s office. In Fox v. HUD, 680 F.2d 315 (3d Cir.1982), the Third Circuit set forth the rules that a district court must follow in dealing with a controversy over the implementation of a consent decree. “[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” Id. at 319, quoting United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). This rule is consistent with ordinary rules of contract construction that resort to extrinsic evidence is permissible only when the instrument itself is ambiguous. Thus, a district court first must determine whether the consent decree requires extrinsic evidence in aid of its interpretation. If extrinsic evidence is admitted, the ambiguity in the consent order must be treated as a question of fact to be resolved by the fact finder, except where the evidence and resulting inferences are uncontroverted. Fox v. HUD, 680 F.2d at 319. We believe that it is unnecessary for us to discern what the parties intended with respect to the target racial balance, or indeed, whether there was ever even a “meeting of the minds,” because we conclude, for reasons set forth below, that the tenant selection and assignment plan that the defendants established is constitutionally and statutorily infirm regardless" }, { "docid": "9329650", "title": "", "text": "the intent underlying the jurisdictional provisions in the consent decree. In earlier cases treating the proper interpretation of an ambiguous consent decree, the Supreme Court implicitly confined the proper focus to the “four corners” of the decree, abjuring recourse to extrinsic evidence. See United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971). In later caselaw, however, the Supreme Court disparaged such a narrow reading of Armour: Since a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree. Such reliance does not in any way depart from the “four corners” rule of Armour. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975) (emphasis added). As noted, this type of “extrinsic evidence” analysis does not seek to modify the terms of the original consent decree without the parties’ consent. Rather, as with all other methods of contract interpretation, the court may use extrinsic evidence to discover the original intent of the parties in settling upon the particular language used in the consent decree. See, e.g., Raymond Keith Foster, Keith Foster Mfg. Co. v. Hallco Mfg. Co., 947 F.2d 469, 482 (Fed.Cir.1991); United States v. O’Rourke, 943 F.2d 180, 187 (2d Cir.1991); North Shore Labs. Corp. v. Cohen, 721 F.2d 514, 519, 520 n. 5 (5th Cir.1983). Under a well-established rule of contract interpretation, the court may look to the parties’ post-contract course of conduct and performance to ascertain the “practical interpretation and application” that the parties themselves attached to ambiguous contract language: In the process of interpretation of the terms of a contract, the court can frequently get great assistance from the interpreting statements made by the parties themselves or from their conduct in rendering or in receiving performance under it. ..." }, { "docid": "11935832", "title": "", "text": "exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the paHies have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.... [T]he instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation. United States v. Armour & Co., 402 U.S. 673, 681-682, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971) (footnote omitted). The district court found itself bound by Armour not to construe the settlement agreement as a contract for the sale of goods. To do so, the court reasoned, would directly contravene Supreme Court precedent because it would amount to construing the agreement by reference to Novamedix’s purpose in entering into it. We agree that the interpretation of the agreement must be based, not on the subjective intentions of the parties, but on the objective words of their agreement. The district court’s reasoning, however, short-circuits the necessary analysis. The wording of the district court’s order suggests that it refused to construe the agreement as a contract for the sale of goods solely because to do so would satisfy Novam-edix’s subjective purposes. Such a basis for the court’s decision would be legal error. Armour does not hold that any interpretation of a consent decree that is in accord with one or the other party’s purposes must be discarded for that reason alone. Obviously, where two parties disagree on the meaning of a contract term, an interpretation that fails to meet one party’s purpose will very likely meet the other party’s purpose. In the present case, interpretation of the settlement agreement as" }, { "docid": "9329649", "title": "", "text": "value of this type of extrinsic evidence. I believe that the majority opinion not only unnecessarily restricts the interpretive inquiry to the “four corners” of the consent decree, but discards appropriate interpretive tools for discovering the intent of the parties as expressed in their consent decree and undervalues the district court’s superior opportunity to evaluate the pertinent extrinsic evidence developed during the course of its superintendence of public institutional reform litigation. I cannot agree that the district court improperly relied on the parties’ post-decree conduct either to “revise” retrospectively the terms of the decree or to deprive the Commonwealth of its original bargain. Concededly, although the court was at all times acutely mindful of the parties’ understanding of the scope of the decree, its opinion does not contain a detailed analysis of the language of the decree. Instead, the district court chose not to base its decision on the ground that the phrase “decentralized form” was unambiguous as a matter of law. Assuming some latent ambiguity, the court opted to examine extrinsic evidence to determine the intent underlying the jurisdictional provisions in the consent decree. In earlier cases treating the proper interpretation of an ambiguous consent decree, the Supreme Court implicitly confined the proper focus to the “four corners” of the decree, abjuring recourse to extrinsic evidence. See United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971). In later caselaw, however, the Supreme Court disparaged such a narrow reading of Armour: Since a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree. Such reliance does not in any way depart from the “four corners” rule of Armour. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975) (emphasis added). As noted," }, { "docid": "11097681", "title": "", "text": "Armour & Co., 402 U.S. 673, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971), the Supreme Court made clear that it is the language of a consent decree that defines the obligations of the parties: Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the 'parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. Id. at 681-82, 91 S.Ct. at 1757 (footnote omitted). The Court has also specified, however, that resort may be had to extrinsic evidence in interpreting the governing language of a consent decree: Since a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree. Such reliance does not in any way depart from the “four corners” rule of Armour. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975) (footnote omitted). Relying upon general contract principles, we have said that “[ejxtrinsic evidence ... may generally be considered only if the terms of the judgment, or of documents incorporated in it, are ambiguous.” SEC v. Levine, 881 F.2d 1165, 1179 (2d Cir.1989). 2. The Language of Paragraph V. We look first, accordingly, to the language of paragraph V. The obligation “to devise long range plans for solid waste disposal for Westchester County” does not, in our" }, { "docid": "2285424", "title": "", "text": "Federal Practice & Procedure: Civil, § 2588. The reason was stated in our opinion in Illinois Central Railroad Co. v. Gulf, Mobile & Ohio Railroad Co., 308 F.2d 374, 375 (5th Cir. 1962): Since this Court is in as good position to interpret the . written contract as was the district court, we cannot rely upon the clearly erroneous rule, but must ourselves construe the contract without any presumption in favor of the judgment of the district court. Thus, our review of the district court’s interpretation of the consent decree’s language is comparable to review of a district court’s contract interpretation and is not restricted by the clearly erroneous rule of F.R.Civ.P. 52(a); the matter may rather be considered afresh by this court as a matter of law. See Kimbell Foods, Inc. v. Republic National Bank, 557 F.2d 491 (5th Cir. 1977). If possible, we are required to analyze a contract’s meaning by its language without resort to extrinsic considerations. This is because the language of an agreement, unless ambiguous, represents the parties’ intention. Kimbell, supra at 496. Of settlement agreements in particular, the Supreme Court has said that: [T]he agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). Where ambiguities exist in the language of a consent decree, the court may turn to other “aids to construction,” such as other documents to which the consent decree refers, as well as" }, { "docid": "17445099", "title": "", "text": "was non-existent at the time the ■consent decree was negotiated and signed by the parties. Finally, defendants claim that the Court should abstain from interfering with Eugene F. v. Gross, Index No. 1125/86 (Sup.Ct., N.Y.Co.), an on-going state court case litigating the issue of kinship care. I. Standard For Interpreting A Consent Decree Essentially, consent decrees should be construed as contracts, although they are to be enforced as court orders. See United Stales v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975); Equal Employment Opportunity Commission v. Local 580, 925 F.2d 588, 592 (2d Cir.1991); Berger v. Heckler, 771 F.2d 1556, 1567-68 (2d Cir.1985). As is the case in interpreting contracts, a court must look to the plain meaning of the language used in the agreement when interpreting a consent decree. Thus, if the language of the settlement agreement is unambiguous, its meaning must be discerned within the “four corners” of that document. United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971); Suarez v. Ward, 896 F.2d 28, 30 (2d Cir.1990). However, in interpreting a consent decree, a court may also consider certain aids to construction, such as “the circumstances surrounding the formation of the consent order.” United States v. ITT Continental Baking Co., 420 U.S. at 238, 95 S.Ct. at 935. That said, it is still “inappropriate [for a court] to search for the ‘purpose’ of a consent decree and construe it on that basis.” Id. at 235, 95 S.Ct. at 934. The reason for this is readily apparent. [T]he decree itself cannot be said to have a purpose; rather the parties have purposes generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. United States v. Armour & Co., 402" }, { "docid": "1292454", "title": "", "text": "to the standards set forth in the exhibit to the decree, and that the re- • peal of emergency assistance is not substantial compliance. But it is not true that we must read one clause in one paragraph of the decree in isolation from the rest of the paragraph and the rest of the decree without reference to the decree’s evident purpose. We accept unreservedly the statement in United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971) (emphasis in original), that a consent “decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other) and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” But this language must be read in context — the context of a government antitrust decree that the government was asking the court to interpret in accordance with the purpose that had moved the government to bring the suit that the decree had settled. We do not understand the Supreme Court to be saying that consent decrees should be interpreted as if their provisions were unmotivated, purposeless, and without context or that the “four corners” of the decree are really the “four corners” of each clause in the decree. The Court was saying that the relevant purposes in interpreting a consent decree (like any other contract) are the purposes embodied in the instrument rather than the maximum aspirations — which are bound to be inconsistent anyway — of the interested parties. Any doubts about this interpretation of Armour should have been dispelled by United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975), which states that “a consent decree or order is to be construed for enforcement purposes basically as a contract,” so that" }, { "docid": "17445100", "title": "", "text": "29 L.Ed.2d 256 (1971); Suarez v. Ward, 896 F.2d 28, 30 (2d Cir.1990). However, in interpreting a consent decree, a court may also consider certain aids to construction, such as “the circumstances surrounding the formation of the consent order.” United States v. ITT Continental Baking Co., 420 U.S. at 238, 95 S.Ct. at 935. That said, it is still “inappropriate [for a court] to search for the ‘purpose’ of a consent decree and construe it on that basis.” Id. at 235, 95 S.Ct. at 934. The reason for this is readily apparent. [T]he decree itself cannot be said to have a purpose; rather the parties have purposes generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). Applying these general principles to the document before it, this Court finds that the Wilder Stipulation unambiguously applies to all New York City children whose placement is the responsibility of the Commissioner of Social Services, including kinship foster care children. II. Plain Wording of the Wilder Stipulation Although the parties take diametrically opposed positions on the issue of kinship care, both rely primarily on ¶4 of the Wilder Stipulation to support their textual arguments. Under the heading “Purposes,” ¶4 simply states: The purposes of this Stipulation are: to ensure that all New York City children whose placement in foster care* is the responsibility of the New York City Commissioner of Social Services receive services without discrimination on the basis of race or religion and have equal access to quality services and to ensure that appropriate recognition be given to a statutorily permissible wish for in-religion placement in a manner consistent with principles ensuring equal protection and non-discrimination as defined in applicable New York State" }, { "docid": "2321169", "title": "", "text": "to continued judicial policing.” Id. Since consent decrees and orders share many of the attributes of ordinary contracts, “they should be construed basically as contracts, without reference to the [claims the plaintiffs] originally sought to enforce but never proved applicable through litigation.” United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37, 95 S.Ct. 926, 934-35, 43 L.Ed.2d 148 (1975). Furthermore, the Supreme Court has stated that “ ‘the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other_’” Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522, 106 S.Ct. 3063, 3075, 92 L.Ed.2d 405 (1986) (quoting United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971)). For these reasons, “the ‘scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it’ or by what ‘might have been written had the plaintiff established his factual claims and legal theories in litigation.’ ” Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 574, 104 S.Ct. 2576, 2585, 81 L.Ed.2d 483 (1984) (quoting Armour, 402 U.S. at 681-82, 91 S.Ct. at 1757). Although interpretation of a consent decree is to follow the general rules prescribed in contract law, the courts, in effectuating the purposes or accomplishing the goals of a decree, are not bound under all circumstances by the terms contained within the four corners of the parties’ agreement. Because of their dual character, consent decrees may be “treated as contracts for some purposes but not for others,” ITT Continental Baking, 420 U.S. at 236 n. 10, 95 S.Ct. at 934 n. 10, and modification may be justified when a court is “satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). In Swift, the Supreme Court stated that “[n]othing less than a" }, { "docid": "59249", "title": "", "text": "the Board itself that postdate the Decree, and other official materials — all of which refer to the 1977 Plan as if it were still alive and well. The Board, on the other hand, urges us to follow the three district judges who have already considered this point and to find that the 1980 Decree superseded the 1977 Plan for purposes of defining the Board’s obligations under Title VI. The District argues that both it and the Department of Education — the actual parties to the Plan and the Decree — agree that the Decree supersedes the 1977 Plan; that the subjects covered in the 1977 Plan all appear (although in less detail) in the 1980 Decree; and that the Principals have failed to show the kind of objective, extrinsic evidence sufficient to prove a latent ambiguity and open the door to a fuller consideration of extrinsic evidence bearing on the agreement. We begin, in keeping with well-established principles, with the plain language of the 1980 Decree. Although consent decrees have the force of a court order, they are also a form of contract to be construed according to basic principles of contract interpretation. See Goluba v. School Dist. of Ripon, 45 F.3d 1035, 1037-38 (7th Cir.1995). See also United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975); United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971) (“[T]he scope of a consent decree must be discerned within its four corners.”). Thus, where a decree is “clear on its face, it is neither necessary nor appropriate to consider ... extrinsic evidence.” Rumpke of Indiana, Inc. v. Cummins Engine Co., 107 F.3d 1235, 1243 (7th Cir.1997) (extrinsic evidence not considered because CERCLA consent decree was unambiguous). However, even “when the terms of the instrument are clear,” extrinsic evidence may be used in the rare situation where a latent ambiguity exists, meaning the terms of the contract “cannot be applied because they do not fit the factual circumstances to which they are addressed.” Ohio" }, { "docid": "467854", "title": "", "text": "of time during which the court could grant further relief not embodied in the decree. A consent decree is basically a contract between the parties and must be construed in the light of traditional tenets of contract construction. United States v. ITT Cont. Baking Co., 420 U.S. 223, 236, 95 S.Ct. 926, 934, 43 L.Ed.2d 148 (1975); Eaton v. Courtaulds of North America, 578 F.2d 87, 90-91 (5th Cir.1978). As stated in United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971): [T]he decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and their resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. (emphasis and footnote omitted) Therefore, unless the decree is ambiguous, we must find the meaning of the decree in its language, without resort to extrinsic considerations. Moreover, we presume that all parts of the decree have meaning and must be construed together. See Eaton, supra. Appellants would have us read Clause XVI as defining the term of the decree’s existence. The clause itself, however, is entitled “Jurisdiction” and refers to the retention of jurisdiction by the district court “for such other and further relief as may be necessary.” Nothing in Clause XVI refers to the life of the decree itself; nor does any other provision of the decree limit in any way the period of time in which the duties and obligations embodied in the decree are to be carried out. Clause II.B, on the other hand, expressly declares: “The defendants are ordered to .utilize permanently in place of job or departmental seniority a system of mill seniority.” (empha sis added) We must assume that the parties employed the word “permanently” because they intended the seniority provision of the decree to continue in perpetuity." }, { "docid": "17285184", "title": "", "text": "whom the signatory associated, and the circumstances of the association. Only where an improper effect on the union’s autonomy, operations, or integrity cannot be inferred from these factors must the court consider whether the associations had an improper purpose in order to find a violation of the decree. In discussing the purpose of the consent decree, we recognize the Supreme Court’s statement that “the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.” United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). The Armour Court emphasized that “the scope of a consent decree must be discerned within its four corners,” and not by reference to what one or the other of the parties hoped to achieve in the decree, or in the underlying litigation. Id. at 682, 91 S.Ct. at 1757. Where a statement of purpose is contained in the decree itself, however, as the product of arm’s-length negotiations, and that purpose may be discerned without reference to the extrinsic aims of the parties, Armour cannot be read to prohibit consideration of that purpose. We therefore see no difficulty in interpreting the decree in light of its agreed-upon purpose to protect the integrity and independence of the union. The District Court did look to the purpose of the consent decree to give meaning to the word “improperly.” It appears, however, that the Court concluded that any systematic contacts between Ciccone and alleged organized crime figures would be improper under the consent decree, regardless of the circumstances. We think that such an interpretation exceeds the bounds of the consent decree, and is in effect indistinguishable from the interpretation given to the language of the Teamsters decrees. The mere fact of knowing association with individuals of prohibited status is not enough; in the absence of a showing of explicit impropriety, there must also be grounds, based on the circumstances of" } ]

[ { "docid": "23385902", "title": "", "text": "OPINION D.W. NELSON, Circuit Judge: The State of Arizona and Apache County, Arizona appeal the district court’s denial of their motions to intervene under Fed. R.Civ.P. 24. The action in which they seek to intervene was brought by environmental organizations including the Forest Conservation Council (collectively “FCC”) alleging that the United States Forest Service (“USFS” or “Forest Service”) was violating the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. and the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600 et seq. by implementing its guidelines for the management of Northern Goshawk habitat on national forest lands. The State of Arizona and Apache County, Arizona, moved to intervene either as of right or permissively under Fed. R.Civ.P. 24. The district court denied appellants’ motions but instead granted them amicus status. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand. I. FACTUAL AND PROCEDURAL BACKGROUND FCC brought suit in district court alleging that the Forest Service violated NEPA by failing to prepare an environmental impact statement assessing, on a region-wide and forest-wide basis, its guidelines for the management of Northern Goshawk habitat. 42 U.S.C. § 4332. FCC further alleged that the Forest Service violated the NFMA by failing to amend its Regional Guide and Land and Resource Management Plan (“LRMP”) to include the recommendations and changes indicated in the management guidelines. 16 U.S.C. § 1604. FCC’s complaint sought both a declaration that the Forest Service was violating the federal laws as claimed, and an injunction “prohibiting the [Forest Service], its agents, successors, assigns, contractors, and employees from allowing, permitting, authorizing or taking any action in connection with the sale of timber and any other decisions in Northern Goshawk habitat until it complies with the requirements of [NEPA] and [NFMA].” Complaint at 12 ¶3. The State of Arizona moved to intervene as of right on behalf of M.J. Hassell, the Commissioner of the Arizona State Land Department, an agency of the State of Arizona with fiduciary responsibility for managing the 9.5 million acres of School Trust Lands granted to the State by the federal government" } ]

[ { "docid": "17656056", "title": "", "text": "an interest in the outcome of this litigation by virtue of their holding grazing permits, but under NEPA, they have neither a duty to comply with the statute nor an interest in compliance itself. Their interest is, at best, more suited to intervention in the remedial phase of this action. Intervenors next argue that the outcome of this litigation may as a practical matter impair their interest in grazing in the El Malpais, and the Court agrees. Under this element of Rule 24(a), such impairment or impediment need not be of a strictly legal nature, and the court may consider any significant legal effect in the applicant’s interest. Coalition, 100 F.3d at 844. Intervenors allege that injunctive relief here has the potential for halting grazing for some time to come. NEPA actions are not known for their speedy resolutions. See Forest Conservation Council, 66 F.3d at 1498; Kleissler, 157 F.3d at 973. The Court finds, therefore, that intervenors’ argument has merit. Moreover Plaintiffs, only arguing that without an interest intervenors can not be impaired, do not seriously debate this point. Intervenors meet the impairment requirement. Finally, the Court finds that the existing parties do not adequately represent intervenors’ interests. While an intervenor carries the burden of showing inadequate representation, that burden is minimal, and “the possibility of divergence of interest need not be great in order to satisfy the burden of the applicants.” Coalition, 100 F.3d at 844-45, quoting Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Comm’n, 578 F.2d 1341, 1346 (10th Cir.1978). Defendant BLM here represents the interests of the government and the public interest in NEPA compliance. Applicants’ interests, quite apart from the NEPA compliance issue, are principally to continue grazing cattle in the El Malpais. Divergence is present, and under Coalition’s liberal standard there is no doubt that applicants meet this condition. See, e.g., Coalition, 100 F.3d at 845-46. The Court will deny FNF Properties’ request for permissive intervention. In arguing for permissive intervention, FNF Properties focuses both on NEPA compliance and on the impairment of its interests, claiming that its defense would involve" }, { "docid": "4460303", "title": "", "text": "Power Company (“Sierra Pacific”), sought to intervene as of right as a defendant in County and City’s action. The district court held that Sierra Pacific could intervene, but only in the remedial phase of the trial. The court excluded it from the merits phase by holding that only the federal government can be the defendant in a NEPA action. Sierra Pacific appeals that decision limiting its intervention. II. Standards of Review A plaintiffs standing to sue is a question of law reviewed de novo. See Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997); Douglas County v. Babbitt, 48 F.3d 1495, 1499 (9th Cir.1995), cert. denied, 516 U.S. 1042, 116 S.Ct. 698, 133 L.Ed.2d 655 (1996). On a summary judgment motion, the plaintiff bears the burden of showing specific facts as to each element of standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A district court’s ruling on a motion to intervene as of right under Federal Rule of Civil Procedure 24(a) is reviewed de novo. See Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1493 (9th Cir.1995). III. Plaintiffs’ Standing A. The Standard for Standing The question of standing involves a ease’s justiciability under Article III of the Constitution: Whether a particular plaintiff has the right to bring a particular claim in federal court. The Supreme Court articulated the basic test for a plaintiffs standing in Lujan v. Defenders of Wildlife: First, the plaintiff must have suffered an “injury in faet”-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly ... traee[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” 504 U.S. 555, 560-61, 112" }, { "docid": "4460326", "title": "", "text": "under NEPA. [Sierra Pacific] urges us to find to the contrary, but such a finding, based on the alleged violations and the relief sought, is simply unsupportable.” Plaintiffs’ claims and request for injunctive relief are firmly grounded on claims of NEPA violation. Second, Sierra Pacific argues that the case of County of Fresno v. Andrus, 622 F.2d 436 (9th Cir.1980), represents an exception to our rule that only the federal government can be a defendant in a NEPA compliance action, and argues that Sierra Pacific falls within that exception. Whatever exception County of Fresno represents, however, has been limited by later decisions to the remedial phase of a trial. See Forest Conservation Council, 66 F.3d at 1499 n. 11; Sierra Club, 995 F.2d at 1485. Therefore, County of Fresno is unavailing to Sierra Pacific’s request to intervene in the merits phase. Sierra Pacific goes to great lengths in its briefs to show that it has a “significantly protectable” interest in the underlying action. These interests (e.g., its duty to protect the quality and quantity of water provided to its service and area, and its interest in the continuing construction of the Pinon Pine Power Plant) suffice only to grant them intervention in the remedial phase, as noted by the district court. Appellant does not have a “significantly protectable” interest in federal government complianee or noncompliance with NEPA. See Forest Conservation Council, 66 F.3d at 1499 n. 11; Sierra Club, 995 F.2d at 1485; Portland Audubon Soc’y, 866 F.2d at 309. Therefore, the district court did not err by limiting its intervention only to the remedial phase. V. Conclusion The district court’s summary judgment in favor of Defendants for Plaintiffs’ lack of standing is REVERSED and the case is REMANDED to the district court. The district court’s decision to limit Sierra Pacific’s intervention to the remedial phase is AFFIRMED. Each party shall bear its own costs. REVERSED IN PART, AFFIRMED IN PART AND REMANDED. . Moreover, as we noted in Portland Audubon Soc’y, this holding does not prevent Sierra Pacific from requesting permission from the district court on remand to submit" }, { "docid": "23477687", "title": "", "text": "on which MTP-PV relies, however, do not support this proposition. For example, in Foundation for Horses v. Babbitt, 154 F.3d 1103 (9th Cir.1998), the plaintiffs alleged that the National Park Service violated NEPA when it decided to remove a herd of horses from national park land and individual defendants were joined because of their purported interest in the horses. Contrary to MTP-PV’s contention that we held that such a property interest was sufficient to remove the case from the normal rule that only the federal government should be a defendant in a NEPA suit, we found that the “normal rule” did not apply to the case because NEPA did not apply to the agency’s decision to remove privately owned horses. Id. at 1106. MTP-PV’s assertion that Ninth Circuit precedent prevents us from adopting a broad interpretation of Churchill County is without merit. Specifically, MTP-PV avers that a broad reading of Churchill County would squarely conflict with County of Fresno v. Andrus, 622 F.2d 436 (9th Cir.1980). In Churchill County, however, we addressed the issue of whether County of Fresno represents an exception to the general rule that only the federal government can be a defendant in a NEPA compliance action. We noted that “[wjhatever exception County of Fresno represents, however, has been limited by later decisions to the remedial phase of a trial.” 150 F.3d. at 1083 (citing Forest Conservation Council, 66 F.3d at 1499 n. 11; Sierra Club, 995 F.2d at 1485). Churchill Ccnmty is controlling here and we therefore affirm the district court’s decision to limit MTP-PV’s intervention in the NEPA action to the remedial phase. B. NEPA Claims 1. Standard of Review We review de novo a district court’s decision to grant summary judgment. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998), cert. denied, 527 U.S. 1003, 119 S.Ct. 2337, 144 L.Ed.2d 235 (1999). The Corps’ decision to prepare an EA rather than an EIS is reviewed under the APA’s arbitrary and capricious standard. Northwest Environmental Defense Center v. Bonneville Power Administration, 117 F.3d 1520, 1536 (9th Cir.1997). The arbitrary and capricious standard" }, { "docid": "3276898", "title": "", "text": "this suit to the District of Columbia is not attenuated, their choice of forum is entitled to substantial weight. Defendants’ argument that this case should be heard in Alaska in the interests of justice is certainly not devoid of merit. The administrative record is located in Alaska, and the people who are directly affected by the DOI’s decision all reside in Alaska’s Northern Slope. However, the future of one of the nation’s National Petroleum Reserves “touches” more than the local citizens of Alaska. The 1.4 million members of the environmental groups bringing this suit view this as a national issue, and have chosen to litigate this dispute in the District of Columbia. In short, the plaintiffs’ choice of forum and the national significance of this controversy require that the defendants’ motion to transfer venue be denied. II. Motions to Intervene Plaintiffs do not oppose Alaska or ASRC’s motions to intervene as defendants pursuant to Federal Rule of Civil Procedure 24(a), but argue that “intervenors right to submit briefing with respect to plaintiffs’ National Environmental Policy Act claims under 42 U.S.C. § 4332 should be restricted to those issues associated with injunctive relief.” (Pis.’ Response to Mots, to Intervene at 1.) Plaintiffs cite two Ninth Circuit cases supporting this limitation. See Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1499 n. 11 (9th Cir.1995); Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir.1993). However, the D.C. Circuit has taken a liberal approach to intervention, see NRDC v. Costle, 561 F.2d 904, 910-11 (D.C.Cir.1977), and has not adopted the Ninth Circuit’s rule that only the federal government can be a defendant in a NEPA case. The Third Circuit has explicitly rejected the Ninth Circuit’s approach as unduly rigid in light of Rule 24’s purpose of protecting third parties affected by the litigation. See Kleissler v. United States Forest Serv., 157 F.3d 964, 971 (3d Cir.1998). Because the Court agrees that the purposes of Rule 24 are best served by permitting the prospective intervenors to engage in all aspects of this litigation, both motions to intervene will be granted" }, { "docid": "17656051", "title": "", "text": "under NEPA. A private party cannot ‘comply’ with NEPA, and, therefore, a private party cannot be a defendant in a NEPA compliance action.” Id. at 1082. Thus the Ninth Circuit, in specifically looking at NEPA intervention where the intervenors were aligned with defendants, has consistently refused to allow intervention more complete than at the remedial stage, and in retreating from Portland Audubon, has always stopped short of allowing full intervention. The Court concedes that other circuits have taken a broader approach. In its recent decision in Kleissler v. United States Forest Service, 157 F.3d 964 (3rd Cir.1998), the Third Circuit was faced in a NEPA compliance action with “a request for intervention by local government bodies and business concerns in litigation brought by environmentalists to restrict logging activity on a National Forest.” Id. at 967. The government entities received funds, either directly or indirectly, from logging operations in the forest. Id. at 968. Some of the private entities held existing logging contracts, others generated most of their income from Forest Service contracts, and one was a successful bidder on a contract whose award the Service had withheld pending outcome of the litigation. Id. The district court had denied intervention for all except those holding existing contract rights, ruling that all others only had an expectation of income generated from the forest. Id. Applying what it called a pragmatic approach to intervention, the Kleissler court stated that “[t]he reality is that NEPA • cases frequently pit private, state, and federal interests against each other. Rigid rules in such cases contravene a major premise of intervention — the protection of third parties affected by pending litigation,” id. at 971, and reversed. Id. at 974. In its reasoning, the Kleissler court considered intervention at the remedial phase, but was concerned with the negative effect that the passage of time could have on intervenors. Recognizing that the public entities were very dependent on forest income, the court stated: To suspend the flow of revenue to the school districts and municipalities for even a limited period of time [if an injunction to bar logging pending" }, { "docid": "20446390", "title": "", "text": "Court because their right to intervene was limited to the \"stages of the litigation addressing the appropriateness of an injunction.” Federal courts have the authority to apply appropriate conditions or restrictions on an intervention as of right. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 383 n. 2, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987) (Brennan, J., concurring) (quoting Advisory Committee Notes on Fed. R.Civ.P. 24, 28 U.S.C.App., p. 567, and noting that \" '[a]n intervention of right under the amended rule [24(a) ] may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of proceedings' ”); see also Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1495 (9th Cir.1995) (noting that a court may limit intervention of a nonparty to those issues in which the nonparty has a sufficient interest). In this case, while the magistrate judge expressly stated that the Intervenors’ ability to protect their interests would be impaired at the stages of litigation dealing with the appropriateness of an injunction, he did not clearly limit the grant of the Intervenors' motion to intervene to the remedial stages of litigation. Although our Court has reviewed, at least once, a case in which private litigants have intervened as defendants in a NEPA suit, we have not expressly confronted the issue of whether this type of intervention is appropriate. See Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (6th Cir.2006); see also Anglers of the AU Sable v. U.S. Forest Serv., 590 F.Supp.2d 877, 882 (E.D.Mich.2008). Additionally, those Circuits that have allowed private parties or non-federal parties to intervene in NEPA actions are split as to whether such intervention is limited to the remedial stages of litigation. See, e.g., Forest Conservation Council, 66 F.3d at 1495-97 (finding that \"third parties have been granted leave to intervene only in the remedial phase of a case” and limiting the non-federal parties to intervention on \"the question of whether an injunction that would directly and immediately affect their legally protected interests should issue” but declining to address whether contractually protected" }, { "docid": "17656049", "title": "", "text": "of right, the appellate panel attempted to harmonize Portland Audubon and Sierra Club, id. at 1493-96, yet skirted the issue of whether a contractually protected economic interest, without more, could suffice as a Rule 24 interest to allow intervention. Id. at 1497. Rather, the Forest Conservation Council panel held that the State had alleged sufficient concrete, plausible, and non-economic interests to satisfy Rule 24. Id. The court also held, however, that because NEPA applied only to the federal government, intervention was proper only at the remedial phase of the action, that is, when the issue of compliance had been decided. Id. at 1496, 1499. The court reasoned that since injunctive relief was an equitable remedy that required engaging in a traditional balance of harms analysis, even in the context of environmental litigation, id. at 1496, intervention at the remedial phase allowed affected parties to “present evidence to assist the court in fashioning the appropriate scope of whatever injunctive relief is granted.” Id. at 1496. In a footnote, the Forest Conservation Council court once again maintained that “appellants cannot claim any interest that relates to the issue of the Forest Service’s liability under NEPA____ In that respect, we agree with Sierra Club’s statement that ‘in a lawsuit only to compel compliance with NEPA, no one but the federal government can be a defendant.’” Id. at 1499 n. 11, quoting Sierra Club, 995 F.2d at 1485. Forest Conservation Council maintained Sierra Club’s approach. Returning to NEPA intervention in Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir.1998), as amended, 158 F.3d 491 (9th Cir.1998), the Ninth Circuit continued in Forest Conservation Council’s footsteps. Churchill County involved a challenge to a water rights acquisition plan where the City of Fallon and Churchill County, Nevada, alleged that the defendants had violated NEPA. Id. at 1076. When a local power utility sought to intervene as a defendant, the district court ruled that it could do so only at the remedial phase. Id. at 1077. The Churchill County court affirmed, stating that “because NEPA requires action only by the government, only the government can be liable" }, { "docid": "23477685", "title": "", "text": "district court’s ruling on a motion to intervene as a matter of right de novo. Forest Conservation Council v. United States Forest Service, 66 F.3d 1489, 1493 (9th Cir.1995). To intervene as of right under Federal Rule of Civil Procedure 24(a) an applicant must claim “an interest relating to the property or transaction which is the subject of the action,” the protection of which may, as a practical matter, be impaired or impeded by the action if the applicant is not allowed to participate in the litigation. See Fed.R.Civ.P. 24(a). We apply the following four-part test to determine if an applicant has a right to intervene: (1) the motion must be timely; (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action. Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir.1993). . As a general rule, “the federal government is the only proper defendant in an action to compel compliance with NEPA.” Churchill County v. Babbitt, 150 F.3d 1072, 1082, as amended by 158 F.3d 491 (9th Cir.1998); see also Forest Conservation Council, 66 F.3d at 1499; Sierra Club, 995 F.2d at 1485; Portland Audubon Society v. Hodel, 866 F.2d 302, 309 (9th Cir.1989). “The rationale for our rule is that, because NEPA requires action only by the government, only the government can be liable under NEPA.” Churchill County, 150 F.3d at 1082. Because a private party can not violate NEPA, it can not be a defendant in a NEPA compliance action. Id. Based on this rule, the district court found that MTP-PV did not assert a legally protectable interest that relates to the NEPA claims. MTP-PV argues that the “none but a federal defendant” rule does not apply to NEPA actions involving an attack upon a permit issued to a private party. The cases" }, { "docid": "3276899", "title": "", "text": "Act claims under 42 U.S.C. § 4332 should be restricted to those issues associated with injunctive relief.” (Pis.’ Response to Mots, to Intervene at 1.) Plaintiffs cite two Ninth Circuit cases supporting this limitation. See Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1499 n. 11 (9th Cir.1995); Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir.1993). However, the D.C. Circuit has taken a liberal approach to intervention, see NRDC v. Costle, 561 F.2d 904, 910-11 (D.C.Cir.1977), and has not adopted the Ninth Circuit’s rule that only the federal government can be a defendant in a NEPA case. The Third Circuit has explicitly rejected the Ninth Circuit’s approach as unduly rigid in light of Rule 24’s purpose of protecting third parties affected by the litigation. See Kleissler v. United States Forest Serv., 157 F.3d 964, 971 (3d Cir.1998). Because the Court agrees that the purposes of Rule 24 are best served by permitting the prospective intervenors to engage in all aspects of this litigation, both motions to intervene will be granted without limitation. Accordingly, it is hereby ORDERED that the defendants’ Motion to Transfer Venue [8] be, and hereby is, DENIED. It is further ORDERED that ASRC’s Motion to Intervene [9] be, and hereby is, GRANTED. It is further ORDERED that Alaska’s Motion to Intervene [13] be, and hereby is, GRANTED. . Plaintiffs have since filed an amended complaint adding claims under the National Petroleum Reserves Production Act, 42 U.S.C. § 6502 et seq., the Federal Land Policy and Management Act, 43 U.S.C. § 1701, Executive Order 11,990, 42 Fed.Reg. 26,961 (1977), reprinted in 42 U.S.C. § 4321, and the Endangered Species Act, 16 U.S.C. §§ 1533(a)(3)(A), 1536(d). . ASRC is a Native Corporation which was formed under the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq., and is owned by its 7,300 Inupiaq Eskimo (the \"Inu-piat”) shareholders who are purportedly the only residents and private land owners within the NPR-A. (ASRC's Mem.Supp. Intervene at 2.) The Inupiat's cash economy is based almost exclusively on oil and gas. (Id. at 7.) .It is" }, { "docid": "17656065", "title": "", "text": "an injunction or any other remedy is appropriate. Nor does the Court’s Order deprive FNF Properties of the right to participate in settlement discussions scheduled by the Court. Because settlement inevitably involves potential remedies, FNF Properties has standing and should be included in any such discussions. . To simplify its opinion, the Court recites applicant FNF Properties' argument, noting that applicants Pablo, Arrossa, and THG Corporation have stated that ”[e]xcept for some legally insignificant differences, [those] [applicants and FNF Properties are similarly situated with respect to their interests and exposure in this case.” Memorandum in Support of Application for Leave to Intervene of Irving and Patricia Pablo, Irene Arrossa and THG Corporation at 3. The Court does not imply, however, that those applicants' claims are any less worthy of consideration. . Forest Guardians and T and E also assert, looking to permissive intervention, that such intervention would cause undue delay and prejudice in the adjudication of this NEPA compliance action. Beyond that basic statement, however, Plaintiffs fail to explain this alleged undue delay and prejudice. Given that applicants have acted quickly, even before Defendant filed an answer to Plaintiffs’ complaint, the Court fails to apprehend either undue delay or prejudice flowing from allowing intervention. . The Court is not unmindful that of ail applicants here, only FNF Properties has alleged a purely economic interest. Applicants Pablo, Arrossa, and THG Corporation all in addition allege an environmental interest and state that they provide resources to the wildlife in the area. While those interests are not trivial, they are not contractually driven, see Forest Conservation Council, 66 F.3d at 1492, 1497, and can not alter the conclusion that none of the applicants has a duty to comply with NEPA or that NEPA does not provide a private right of action. Compare Coalition, 100 F.3d at 841. . Because they have filed separate motions and may present different factual positions on compliance, applicants Pablo, Arrossa, and THG may file a collective brief, and FNF Properties may file its own brief. . It is not surprising that the two-phase approach adopted by the Ninth" }, { "docid": "17656050", "title": "", "text": "that “appellants cannot claim any interest that relates to the issue of the Forest Service’s liability under NEPA____ In that respect, we agree with Sierra Club’s statement that ‘in a lawsuit only to compel compliance with NEPA, no one but the federal government can be a defendant.’” Id. at 1499 n. 11, quoting Sierra Club, 995 F.2d at 1485. Forest Conservation Council maintained Sierra Club’s approach. Returning to NEPA intervention in Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir.1998), as amended, 158 F.3d 491 (9th Cir.1998), the Ninth Circuit continued in Forest Conservation Council’s footsteps. Churchill County involved a challenge to a water rights acquisition plan where the City of Fallon and Churchill County, Nevada, alleged that the defendants had violated NEPA. Id. at 1076. When a local power utility sought to intervene as a defendant, the district court ruled that it could do so only at the remedial phase. Id. at 1077. The Churchill County court affirmed, stating that “because NEPA requires action only by the government, only the government can be liable under NEPA. A private party cannot ‘comply’ with NEPA, and, therefore, a private party cannot be a defendant in a NEPA compliance action.” Id. at 1082. Thus the Ninth Circuit, in specifically looking at NEPA intervention where the intervenors were aligned with defendants, has consistently refused to allow intervention more complete than at the remedial stage, and in retreating from Portland Audubon, has always stopped short of allowing full intervention. The Court concedes that other circuits have taken a broader approach. In its recent decision in Kleissler v. United States Forest Service, 157 F.3d 964 (3rd Cir.1998), the Third Circuit was faced in a NEPA compliance action with “a request for intervention by local government bodies and business concerns in litigation brought by environmentalists to restrict logging activity on a National Forest.” Id. at 967. The government entities received funds, either directly or indirectly, from logging operations in the forest. Id. at 968. Some of the private entities held existing logging contracts, others generated most of their income from Forest Service contracts, and one was" }, { "docid": "4460324", "title": "", "text": "the action,” the protection of which may be impaired or impeded by the action if the applicant cannot participate in the litigation. See Fed. R. Civ. Pro. 24(a). We apply a four-part test under this rule: “(1) the motion must be timely; (2) the applicant must claim a ‘significantly pro-tectable’ interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action.” Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1493 (9th Cir.1995) (quoting Sierra Club v. United States Envtl. Protection Agency, 995 F.2d 1478, 1481 (9th Cir.1993)). The district court in this case held that Sierra Pacific did not meet the second element of this test-that Sierra Pacific did not have a “significantly protectable” interest in the underlying action that would entitle it to intervene during the merits phase. The district court relied on our rule that the federal government is the only proper defendant in an action to compel compliance with NEPA. See Forest Conservation Council, 66 F.3d at 1499 n. 11; Sierra Club, 995 F.2d at 1485; Portland Audubon Soc’y, 866 F.2d at 309. The rationale for our rule is that, because NEPA requires action only by the government, only the government can be liable under NEPA. A private party cannot “comply” with NEPA, and, therefore, a private party cannot be a defendant in a NEPA compliance action. See, e.g., Sierra Club, 995 F.2d at 1485. Sierra Pacific proffers two arguments in an attempt to circumvent our rule. First, it contends that the County and City are seeking more than mere compliance with NEPA in their action against the Secretary. Sierra Pacific argues that Plaintiffs’ suits “are more accurately characterized as attacks on the Settlement Act itself in an attempt to prevent its implementation.” This characterization must fail. As the district court recognized in its order, “Plaintiffs’ ease clearly arises" }, { "docid": "17656048", "title": "", "text": "NEPA, no one but the federal government can be a defendant. Id. at 1485. The Sierra Club court, therefore, while striving to limit Portland Audubon’s reach, also reaffirmed that in NEPA litigation, courts should not allow full as-of-right intervention by private parties aligned with a defendant. The issue arose again in Forest Conservation Council, 66 F.3d at 1489, where plaintiffs sued “alleging that the Forest Service violated NEPA by failing to prepare an environmental impact statement assessing, on a region-wide and forest-wide basis, its guidelines for the management of the Northern Goshawk habitat.” Id. at 1491. Putative intervenor, the State of Arizona, aligned with the Forest Service, alleged that it received between six and seven million dollars annually from timber sales in Arizona’s national forests which would be impacted if the court were to grant injunctive relief. Id. at 1492. The State also alleged that it had an environmental stake in the litigation, because it was obligated to provide fire suppression activities on federal lands. Id. In reversing the district court’s denial to intervene as of right, the appellate panel attempted to harmonize Portland Audubon and Sierra Club, id. at 1493-96, yet skirted the issue of whether a contractually protected economic interest, without more, could suffice as a Rule 24 interest to allow intervention. Id. at 1497. Rather, the Forest Conservation Council panel held that the State had alleged sufficient concrete, plausible, and non-economic interests to satisfy Rule 24. Id. The court also held, however, that because NEPA applied only to the federal government, intervention was proper only at the remedial phase of the action, that is, when the issue of compliance had been decided. Id. at 1496, 1499. The court reasoned that since injunctive relief was an equitable remedy that required engaging in a traditional balance of harms analysis, even in the context of environmental litigation, id. at 1496, intervention at the remedial phase allowed affected parties to “present evidence to assist the court in fashioning the appropriate scope of whatever injunctive relief is granted.” Id. at 1496. In a footnote, the Forest Conservation Council court once again maintained" }, { "docid": "17656041", "title": "", "text": "adjudication of BLM’s compliance with NEPA in administering grazing permits. FNF Properties also advances that a ruling on compliance could impair or impede its ability to protect that interest, since a determination that the BLM has failed to comply with NEPA, despite being required to do so, could lead to a suspension or revocation of grazing permits that could harm it and other intervenors financially. Finally, FNF Properties claims its and the BLM’s interests are somewhat divergent, since it seeks to protect its grazing rights and the BLM, in addition to being subject to NEPA, must represent the public interest in the management of lands for multiple uses. In response, Plaintiffs Forest Guardians and T and E concentrate on one point: that applicants only have an economic interest in this litigation, and that economic interests in the outcome of NEPA litigation are not protectable interests for purposes of intervention in such actions. Plaintiffs further maintain that, not having a protectable interest, applicants can not meet the second and third as-of-right intervention requirements. Lastly, Forest Guardians and T and E suggest that were the Court to grant intervention, the Court should limit such intervention to the remedial phases of this action, citing Forest Conservation Council v. United States Forest Service, 66 F.3d 1489 (9th Cir.1995). It is uncontroverted that the motions to intervene in this case are timely. As the starting point of its analysis, the Court, mindful that in the Tenth Circuit intervention “has tended to follow a somewhat liberal line,” Nat’l Farm Lines v. Interstate Commerce Comm’n., 564 F.2d 381, 384 (10th Cir.1977), looks to Coalition of Arizona/New Mexico Counties v. Dept. of Interior, 100 F.3d 837 (10th Cir.1996), as one of the Circuit’s latest pronouncements on intervention. In that Endangered Species Act (ESA) case, the court required that for Rule 24 purposes an interest be “direct, substantial, and legally protectable.” Id. at 840. Focusing both on the intervenor’s direct involvement with the species at issue, as well as the ESA provision allowing a private citizen to sue for the placement of species on an endangered list, the Coalition" }, { "docid": "3540785", "title": "", "text": "challenged the Forest Service’s decision in federal court and moved for summary judgment. WSSC, the City of Greeley, the Greeley Water and Sewer Board, the State Engineer of the State of Colorado, and the Colorado Water Conservation Board intervened as defendants. The district court dismissed or denied all but one of TU’s claims for relief. It granted summary judgment, however, on TU’s claim that the Forest Service’s issuance of the Long Draw permit violated FLPMA. The court reversed the Forest Service’s decision and remanded the matter to the agency “for further consideration in accordance with its obligations under FLPMA.” Trout Unlimited v. U.S. Dep’t of Agric., 320 F.Supp.2d 1090, 1115-16 (D.Colo.2004). Defendant-Intervenors appeal the district court’s decision. They assert the Forest Service lacks authority to impose bypass flow requirements as a condition of permit issuance and claim the district court erred in granting summary judgment to TU. TU cross-appeals, raising claims under the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”). In addition to the merits issues, the parties have submitted three motions for this court’s consideration. First, the Forest Service, with the support of TU, moves to dismiss for lack of appellate jurisdiction. Second, DefendanU-Intervenors move to certify questions of state law. Third, Washington Agricultural Legal Foundation, Washington State Potato Commission, Washington State Dairy Federation, and New Mexico Cattle Growers Association (collectively Washington Agricultural) move for leave to submit an amicus brief. III. ANALYSIS Before addressing the substance of the parties’ claims, this court must first resolve the jurisdictional issue raised by the Forest Service in its motion to dismiss. See In re Universal Serv. Fund Tel. Billing Practice Litig., 428 F.3d 940, 942 (10th Cir.2005) (noting this court’s “first responsibility is to determine whether [it has] jurisdiction”). The Forest Service claims the district court’s decision that the Long Draw permit violated FLPMA is not a final, appealable order because the court remanded the matter for further consideration by the agency. Defendant-Interve-nors, on the other hand, contend appellate jurisdiction is appropriate under § 1291 whenever a case raises an important issue of federalism. They allege" }, { "docid": "20446391", "title": "", "text": "he did not clearly limit the grant of the Intervenors' motion to intervene to the remedial stages of litigation. Although our Court has reviewed, at least once, a case in which private litigants have intervened as defendants in a NEPA suit, we have not expressly confronted the issue of whether this type of intervention is appropriate. See Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (6th Cir.2006); see also Anglers of the AU Sable v. U.S. Forest Serv., 590 F.Supp.2d 877, 882 (E.D.Mich.2008). Additionally, those Circuits that have allowed private parties or non-federal parties to intervene in NEPA actions are split as to whether such intervention is limited to the remedial stages of litigation. See, e.g., Forest Conservation Council, 66 F.3d at 1495-97 (finding that \"third parties have been granted leave to intervene only in the remedial phase of a case” and limiting the non-federal parties to intervention on \"the question of whether an injunction that would directly and immediately affect their legally protected interests should issue” but declining to address whether contractually protected economic interests would entitle intervention); Kleissler v. U.S. Forest Serv., 157 F.3d 964 (3d Cir.1998) (allowing private parties and local governmental bodies to intervene as defendants in a NEPA lawsuit without limitation to the remedial stage of the lawsuit). Because the parties have not briefed the issue of whether non-federal parties may intervene in NEPA lawsuits on the basis of economic interests, we find it inappropriate to confront this issue here. Additionally, because we find the Intervenors' ability to protect their interests would only be impaired at the stages of litigation dealing with the appropriateness of an injunction, we decline to consider their arguments on appeal. . This was not a basis on which the district court dismissed FTF's lawsuit. Appellate courts, however, may affirm a decision on any grounds supported in the record. Ley v. Visteon Corp., 543 F.3d 801, 805-06 (6th Cir.2008). . As noted earlier, NEPA does not authorize a private right of action but judicial review is granted through the APA. Sierra Club, 120 F.3d at 630-31 (citing 5 U.S.C. §" }, { "docid": "4460325", "title": "", "text": "merits phase. The district court relied on our rule that the federal government is the only proper defendant in an action to compel compliance with NEPA. See Forest Conservation Council, 66 F.3d at 1499 n. 11; Sierra Club, 995 F.2d at 1485; Portland Audubon Soc’y, 866 F.2d at 309. The rationale for our rule is that, because NEPA requires action only by the government, only the government can be liable under NEPA. A private party cannot “comply” with NEPA, and, therefore, a private party cannot be a defendant in a NEPA compliance action. See, e.g., Sierra Club, 995 F.2d at 1485. Sierra Pacific proffers two arguments in an attempt to circumvent our rule. First, it contends that the County and City are seeking more than mere compliance with NEPA in their action against the Secretary. Sierra Pacific argues that Plaintiffs’ suits “are more accurately characterized as attacks on the Settlement Act itself in an attempt to prevent its implementation.” This characterization must fail. As the district court recognized in its order, “Plaintiffs’ ease clearly arises under NEPA. [Sierra Pacific] urges us to find to the contrary, but such a finding, based on the alleged violations and the relief sought, is simply unsupportable.” Plaintiffs’ claims and request for injunctive relief are firmly grounded on claims of NEPA violation. Second, Sierra Pacific argues that the case of County of Fresno v. Andrus, 622 F.2d 436 (9th Cir.1980), represents an exception to our rule that only the federal government can be a defendant in a NEPA compliance action, and argues that Sierra Pacific falls within that exception. Whatever exception County of Fresno represents, however, has been limited by later decisions to the remedial phase of a trial. See Forest Conservation Council, 66 F.3d at 1499 n. 11; Sierra Club, 995 F.2d at 1485. Therefore, County of Fresno is unavailing to Sierra Pacific’s request to intervene in the merits phase. Sierra Pacific goes to great lengths in its briefs to show that it has a “significantly protectable” interest in the underlying action. These interests (e.g., its duty to protect the quality and quantity of" }, { "docid": "17656055", "title": "", "text": "when stating that the interest test is “primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Coalition, 100 F.3d at 841, citing Nuesse v. Camp, 385 F.2d 694, 700 (D.C.Cir.l967);Espy, 18 F.3d at 1207. Without interpreting what may be a conflict in Coalition in setting both a practical standard and mandating a direct, substantial, and legally protectable interest for intervention, see Coalition, 100 F.3d at 840-41, this Court notes that even under the more permissive reading of Coalition, compliance with NEPA remains a uniquely federal issue, and that the Court may order only a federal defendant to act pursuant to NEPA. Thus, taking guidance from the Ninth Circuit line of cases, the Court concludes that applicants here do not have a sufficiently direct, substantial, and legally protectable interest in this challenge to. NEPA compliance to allow full as-of-right intervention under Rule 24. Even a broad pragmatic approach can not create a right or a duty where none exists. Applicants may have an interest in the outcome of this litigation by virtue of their holding grazing permits, but under NEPA, they have neither a duty to comply with the statute nor an interest in compliance itself. Their interest is, at best, more suited to intervention in the remedial phase of this action. Intervenors next argue that the outcome of this litigation may as a practical matter impair their interest in grazing in the El Malpais, and the Court agrees. Under this element of Rule 24(a), such impairment or impediment need not be of a strictly legal nature, and the court may consider any significant legal effect in the applicant’s interest. Coalition, 100 F.3d at 844. Intervenors allege that injunctive relief here has the potential for halting grazing for some time to come. NEPA actions are not known for their speedy resolutions. See Forest Conservation Council, 66 F.3d at 1498; Kleissler, 157 F.3d at 973. The Court finds, therefore, that intervenors’ argument has merit. Moreover Plaintiffs, only arguing that without an interest intervenors can not be impaired, do" }, { "docid": "17656047", "title": "", "text": "have provided firm support for applicants’ position, for Plaintiffs Forest Guardians and T and E do not dispute that applicants’ economic interests here are based on grazing permits they now hold. However, in what is arguably dicta, the Sierra Club court went on to state that PoHland Audubon is most plainly distinguished from and reconciled with these cases [that allow intervention even where a statute under which the litigation is brought does not create an interest] by understanding it as a NEPA case. In NEPA cases, interests which might be protectable in other litigation contexts may not suffice for intervention as a defendant under Portland Audubon. NEPA does not regulate the conduct of private parties or state or local governments. NEPA requires the federal government to issue an environmental impact statement before taking any action “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Since NEPA requires only action by the government, no private party can comply with NEPA. It is for that reason that in a lawsuit to compel compliance with NEPA, no one but the federal government can be a defendant. Id. at 1485. The Sierra Club court, therefore, while striving to limit Portland Audubon’s reach, also reaffirmed that in NEPA litigation, courts should not allow full as-of-right intervention by private parties aligned with a defendant. The issue arose again in Forest Conservation Council, 66 F.3d at 1489, where plaintiffs sued “alleging that the Forest Service violated NEPA by failing to prepare an environmental impact statement assessing, on a region-wide and forest-wide basis, its guidelines for the management of the Northern Goshawk habitat.” Id. at 1491. Putative intervenor, the State of Arizona, aligned with the Forest Service, alleged that it received between six and seven million dollars annually from timber sales in Arizona’s national forests which would be impacted if the court were to grant injunctive relief. Id. at 1492. The State also alleged that it had an environmental stake in the litigation, because it was obligated to provide fire suppression activities on federal lands. Id. In reversing the district court’s denial to intervene as" } ]

[ { "docid": "6010167", "title": "", "text": "indicated by the diagram made by this witness (Robson) emphasizes such fact. The statement of the first officer of the Wakena that the Nitinat was far to his port side, as indicated by the diagram, is greatly exaggerated. The testimony establishes that these vessels, when first approaching, were green to green. This relation of the vessels appears to be sustained by the testimony of the first officer of the Adelaide, who, after having passed the Nitinat and its tow, and the Wakena nearly half a mile to starboard, looking back, saw the vessels in such relation that a collision was inevitable, which would indicate, considering the location of the Adelaide, that the Nitinat was on the Wakena’s port. Much emphasis is placed by respondent upo,n the fact that the collision occurred in the open sea and without the jurisdiction of the Inland Rules of the Road. All vessels running upon the same waters should be bound by the same rules. The Delaware, 161 U. S. 459, 16 Sup. Ct. 516, 40 L. Ed. 771. However, in this case, both parties were proceeding upon the theory that they were navigating inland waters. The first officer of the Nitinat in answer to the question, “When you answered her one blast with one blast, what did you do?” replied, “I ported the helm; that is, I directed my course to starboard.” The circumstances considered, and the facts upon which there is no dispute, or are established, indicate that, when one blast was given by the Wakena and answered by the Nitinat, if the Nitinat had properly maneuvered as indicated by the signal, the collision would not have occurred; or, if that was impossible of execution, then the Nitinat is at fault in acquiescing in a maneuver which it was dangerous or impossible to execute. 1 think the Wakena was at fault in not reversing its engine when it received no response to its first blast and saw that a collision was inevitable. I think both vessels are at fault, and the damages should be divided." } ]

[ { "docid": "5943909", "title": "", "text": "Pac. Ry. Co. (D. C.) 262 Fed. 989. The officer in charge of the navigation of the Munaires was in doubt for at least ten minutes before the collision as to the navigation of the Hortensius. She did not reduce her speed in time, nor port her helm, but continued on her course for about five minutes. It was the duty of the Munaires’ navigator, when so in doubt, to slow or stop and reverse her engines under the circumstances which created the doubt and which then confronted him. The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126; The Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751; The Portia, 64 Fed. 811, 12 C. C. A. 427. Jaekson was serving as a quartermaster on the Munaires, but when the vessels collided he was stationed at the after davit along with the third assistant engineer, whom he had asked to assist him. The situation appeared serious, and it was expected that the vessel would sink. There was great confusion, and some of the crew became panic stricken and tried to get into or aboard the lifeboat, which was being rigged outboard. It was intended to lower the boat into the water, not merely to swing it out. The deceased and another were standing at the after davit, pushing the stern of the lifeboat overboard, when the upper part of the davit broke off. The upper part of the davit went overboard, striking the assistant engineer, and Jackson and another were thrown into the water, and the lifeboat plunged downward, landing on an even keel. Jackson did not at any time get into the boat, and he was drowned. Holding, as we do, that both vessels are at fault for the collision, and therefore responsible for the damage to the davit, which broke and caused Jackson to be thrown into the water and drowned, this was the proximate canse of Jackson’s death. • We see no error in the conclusion arrived at below. The decrees are affirmed." }, { "docid": "13544388", "title": "", "text": "out of the way.” To fail to reverse the engines in the face of danger is sufficient to. fasten liability upon the Proteus, to charge it with contributing to the collision. Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751; The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 F. Ed. 126; The Volund, 181 Fed. 643, 104 C. C. A. 373. We think the Cushing was at fault in not flashing or setting her lights on, and for failing to give the Proteus a wider berth. The officer of the Cushing reports the collision as occurring at 1:05 a. m. He says that the Proteus was under observation from 12:50 a. m. to the time of the collision. When he first sighted her, he could not determine which way she was going. He continued to observe her, however, and noted that her bearings were getting broader on his bow. The vessels at this time were at least 3 miles apart. The navigating officer of the Cushing, by his own testimony, shows he was fully aware of the course of the Proteus. It is conceded that the speed of the two ships was, the Cushing, 12 knots per hour, or 1,217 feet per minute; the Proteus 13% knots, or 1,370 feet per minute. The combined speed was therefore 2,587 feet per minute. Accepting the' estimate of the Cushing’s officer of the distance of 3 miles, it was at least 7 minutes before the collision after he knew the exact course of the Proteus.’ He had no right to assume that the Proteus had like knowledge with respect to the movements of the Cushing. It did not háve the appearance of a starboard to starboard passing, as argued in behalf of the Cushing. In so far as the Proteus was concerned, the Cushing would appear to be almost dead ahead up to a very short interval of time before the collision. The diagrams indicate this. Any change in the bearing of the Cushing in respect to the Proteus would occur very slowly, because" }, { "docid": "13283217", "title": "", "text": "she continued to blow her passing signals, apparently continuing to invite the assent of the Stone. Being in doubt as to the Stone’s movements, it was the Etruria’s duty to sound an alarm by giving several short, rapid blasts of her whistle; and under the circumstances shown by this record, including the density of the fog, the number of vessels on opposite and differing courses, and the confusion and interruption of signals, cautious navigation under rule 15, in connection with the other rules, required the Etruria, in case the location and intention of the Stone could not otherwise be determined, to stop, and, if necessary, to reverse, until the exact course and position of the Stone could be ascertained. The New York, 175 U. S. 187, 201, 20 Sup. Ct. 67, 14 L. Ed. 126; The North Star, 62 Fed. 71, 10 C. C. A. 262; The George W. Roby, 111 Fed. 601, 49 C. C. A. 481. In Re The North Star, supra, the inconclusive and speculative nature of the appearance of broadening off of signals created only by sound is commented upon. The Etruria had no right to go drifting (as claimed), in this dense fog, at an angle of two points across the course of the other steamer with no further warning of her' approach than a repetition, at two minute intervals, of a signal asserting that she was directing her course to port. As to the Stone: Her fault, while not perhaps so great as that of the Etruria, is equally plain. She heard the Etruria’s passing signal. Her only excuse for not replying is that she did not suppose it was meant for her, but believed it was intended for the Aurania. In so assuming, she was obliged to take it for granted that the Etruria, in view of her position in the lake, was bound for Rake Superior, and so could not be intending to pass on the Stone’s starboard. There was no warrant for such conclusive assumption. The Stone’s navigator had no right to thus conclusively assume that a passing signal given by" }, { "docid": "15595358", "title": "", "text": "anchor. We cannot, however, persuade ourselves that the tug was free from fault. It was broad daylight. All the vessels concerned were moving very slowly, the Sanford not over two miles an hour. That the Strathleven was coming to anchor must have been apparent tb the tug for many minutes before the collision. That she was swinging around was obvious. That she was visibly dragging back on her anchor is testified to by the master of the tug. It. matters not how gross the fault of the Strathleven was, the Sanford was not absolved from the use of such precautions as good judgment and accomplished seamanship required. The Albert Dunois, 177 U. S. 249, 20 Sup. Ct. 595, 44 L. Ed. 751. She was approaching a vessel, whose movements must to her have seemed uncertain, as in fact they were. If she could not for any reason so change her course as to carry her out of the possibility of a collision, she should have stopped if she could have done so with safety to herself and to her tow. The New York, 175 U. S. 201, 20 Sup. Ct. 67, 44 L. Ed. 126. Moving as slowly as she was, in the teeth of so strong a wind and with the tide running against her, stopping was both safe and easy. The learned judge below said that the effect of stopping would have been uncertain. In coming to this conclusion he has apparently lost sight of the testimony of the master of the tug that he iould have stopped without danger, and would have done so had the tide not been at ebb. There is no question but that the tide was flood. The court so finds. Ignorance by a navigator of the state of the tide in waters to which he is accustomed is inexcusable. “For * * * it his vessel must answer.” The John H. May (D, C.) 52 Fed. 884. We appreciate that the efforts of the tug to carry its tow safely by the stem of the Strathleven were embarrassed by the approach of" }, { "docid": "4170772", "title": "", "text": "the steamship claim to have given, those on the tug had reason to suppose that at least as soon as the steamship was clear of the dredge V ascot she would go to the starboard, and that the pilot of the steamship had concluded that with her speed she could do it, knowing, as the pilot of the tug did from his familiarity with the location of the dredge, that there was plenty of room for the steamship to pass in the channel to the northward of the dredge. The learned opinion of the Chief Justice in the leading case of The Victory and The Plymothian, 168 U. S. 410, 18 Sup. Ct. 119, 42 L. Ed. 519, settles many points which can he well applied to the present case. The rule is also sanctioned that, where one vessel has caused a collision by disregarding a statutory rule which the other vessel had a right to rely upon being obeyed, the proof of fault on the part of that other vessel should be clear and convincing to justify the court in holding her also in fault, and doubts about her management should be resolved in her favor. The attempt of the steamship to take the wrong side of channel is sought to be justified by the risk she would have run of touching bottom if she had not directed her course as close as she could to the dredge. But the real distance was 420 feet between the dredge and the northern side of the channel, which was ample for both the steamship and the tug to have passed in safety, and, if the pilot of the steamship did not think so, he could have stopped the steamship before she was abreast of the dredge until the tug had passed, or until he had an assenting signal from the tug showing that she understood that the steamship purposed to pass starboard to starboard, and the tug assented to it. It is well settled that when a vessel which has signaled by two blasts that she intends passing to starboard, instead" }, { "docid": "9838662", "title": "", "text": "U. S. 404, 417, 17 Sup. Ct. 610, 41 L. Ed. 1053; The Fountain City, 10 C. C. A. 278, 62 Fed. 87, 22 U. S. App. 301, 309; The North Star, 10 C. C. A. 262, 62 Fed. 71, 22 U. S. App. 242. The fog was dense. The vessels appeared to be very near and to be drawing nearer. The only indication of the location and course of the Roby was the apparent bearing of ¿ single .passing whistle. Upon this uncertain basis for an opinion, the Florida maintained her speed and put her helm hard a-starboard. In the case of The New York, cited above, the court, in speaking of the duty of a steamer in a fog upon hearing the fog horn of an approaching vessel, said: “Upon hearing the fog horn of the bark only one point on her starboard bow, the officer in charge should at once have checked- her speed, and, if the sound indicated that the approaching vessel was near, should have stopped or reversed until the sound was definitely located or the vessels came in sight of each other. Indeed, upon the testimony in this case, it is open to doubt whether, if the engine had been at once stopped, the steamer would have come to a standstill before .she had crossed the course of the bark. There is no such certainty of the exact position of a horn blown in a fog as will justify a steamer in speculating upon the probability of avoiding it by a change of the helm, without taking the additional precaution of stopping until its location is definitely ascertained.” The Hypodame, 6 Wall. 216, 18 L. Ed. 794; The Kirby Hall, 8 Prob. Div. 71; The Sea Gull, 23 Wall. 165, 23 L. Ed. 90; The Ceto, 6 Asp. 479, 14 App. Cas. 670. We think this is j’ust as applicable to a fog whistle as to a fog horn, and as applicable to two steamers in a fog as to a steamer and sailing vessel. The observation of the court in that case was" }, { "docid": "23088678", "title": "", "text": "preferred steamer will not be held in fault for maintaining her course and speed, so long as it is possible for the other to avoid her by porting, at least in the absence of some distinct indication that she is about to fail in her duty. If the master of the preferred steamer were at liberty to speculate upon the possibility or even the probability of the approaching steamer failing to do her duty and keep out of his way, the certainty that the former will hold his course, upon which the latter has a right to rely, and which it is the very object of the rule to insure, would give place to doubts on the part of the master of the obligated steamer as to whether he would do so or not, and produce a timidity and feebleness on the part of both which would bring about more collisions than it would prevent.” We do. not understand that this clear exposition of the duty of a privileged steamer has since been qualified by the Supreme Court, The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126, is cited; but that steamer was advised by signals, which the court held she was conspicuously in fault for not hearing, that the Conemaugh was about to navigate so as to involve risk of collision, should the New York keep her course and speed. In The Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751, the vessels were meeting end on, or nearly so; and a change of course of the Dumois, evidenced by the shifting of lights, was observable to the Argo, and notice to her that the former was not going to starboard, but, on the contrary, was swinging to port across her bows. The Chicago was seen from the Augusta when leaving her Jersey slip, and again when halfway across the river. Assuming that she was not observed from: the Chicago while the latter was engaged with the Fanwood, we are unable to find in that circumstance a contributing" }, { "docid": "5943907", "title": "", "text": "or 5 minutes before the collision; that is to say, when the vessels were from 750 to 1,000 feet apart. This was answered by the Munaires. The pilot of the Hortensius says he expected to pass the Munaires starboard to starboard. This explains the Hortensius showing her red light and then opening her green. There was then a failure to port until just before the collision. This delay was manifested by the diagram drawn by the pilot. If the Hortensius had ported in time, there would have been less opportunity for a collision, for it is conceded that the Hortensuis could In a minute and a half swing two or three points. Apparently her porting was when the vessels were near collision. The explanation advanced, that the reason she did not port sooner is that her pilot wrongly assumed that the Munaires was going out to the Barrows and the vessels could pass starboard to starboard, is insufficient. There was no two-blast signal by the Hortensias, indicating a desire to pass the Munaires starboard to starboard, nor were there any other alarm signals to indicate that the Hortensius did not understand the one-blast signal sounded. Again, we think the Hortensius should have slowed or stopped and reversed her engines before “a few seconds before the collision,” when the vessels were one ship’s length away or less. It has long been settled that, if a vessel is approaching another vessel which has disregarded her signals, or whose position or movements are uncertain, she is bound to stop until her course be ascertained for a certainty. The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126. A vessel which has signaled by two blasts that she intends passing to starboard instead of to port, and gets no assenting response, is in duty bound to stop, reverse, and, if necessary, come to a standstill, until the course of the other vessel has been ascertained with certainty, and the risk of collision removed. Chamberlain v. Ward, 21 How. 548, 16 L. Ed. 211; Border Line Transp. Co. v. Canadian" }, { "docid": "22551582", "title": "", "text": "steamers were about three quarters of a mile apart, repeated her signal of two blasts — the New York then showing her masthead and both colored lights. Again no reply was made by the New York. The Conemaugh, which had then ported and was heading toward the Canadian shore, and about four points from the direct course down the river, gave a third signal of two blasts, the New York continuing to show all three of her lights, arid being apparently close to and between the second and third barges of the tow. The New York made no answer to this third signal. The duty of the Conemaugh at- this juncture was plain. She should have stopped her engines after the second signal, and, if necessary to bring her to a complete standstill, have reversed them. Nothing is better settled than that, if a steamer be approaching another vessel which has disregarded her signals, or whose position or movements are uncertain, she is bound to stop until her course be ascertained with certainty. The Louisiana, (Louisiana v. Fisher,) 21 How. 1; The Ogdensburgh, (Chamberlain v. Ward,) 21 How. 548; The R. H. Stokes, (Nelson v. Leland,) 22 How. 48; The Martello, 153 U. S. 64, 71; The Teutonia, 23 Wall. 77; The James Watt, 2 W. Rob. 270; The Birkenhead, 3 W. Rob. 75; The Hermann, 4 Blatchford, 441; The Huntsville, 8 Blatchford, 228; The Hammonia, 4 Ben. 515; The Mary Sandford, 3 Ben. 100; The Arabian, 2 Stuart Vice Adm’y, 72. There was peculiar necessity for such action in this case. These vessels were about to meet upon crossing courses, and to pass each other in the narrowest part of the channel. The Conemaugh had three times signalled her wish to take the Canadian side, and pass starboard to starboard. The New York had three times neglected to give her assent to this arrangement. The Cone maugh had construed her failure to reply as an acquiescence in her own signals. The New York might have construed such failure as a refusal to acquiesce. In such a case it was" }, { "docid": "14717439", "title": "", "text": "20 F.(2d) 25; The New York (C. C. A.) 86 F. 814. If the other steamer fails to assent, or if the course of the latter is uncertain, the signaling vessel is bound to stop. The New York, 175. U. S. 187, 20 S. Ct. 67, 44 L. Ed. 126; The Munaires (C. C. A.) 1 F.(2d) 13; A. H. Bull S. S. Co. v. U. S. (C. C. A.) 34 F.(2d) 614, 616. As was said by the Court of Appeals of this circuit: “A vessel which has signaled by two blasts that she intends passing to starboard instead of to port, and gets no assenting response, is in duty bound to stop, reverse, and, if necessary, come to a standstill, until the course of the other vessel has been ascertained with certainty, and the risk of collision removed.'' The Munaires, 1 F.(2d) 13, 15. See also The Bilbster (C. C. A.) 6 F.(2d) 954; The Sabine Sun (C. G. A.) 33 F.(2d) 42. Even if the distance of the vessels was so great as not to require a reversal of the engines, the situation required at the least a slackening of speed, until a definite arrangement was consummated. Respondent argues, however, that even if the Antigone be found guilty of these breaches of duty, her culpable conduct was a condition rather than a cause of collision. It asserts that a supervening negligence of the Gaelic Prince in failing to maneuver properly in accordance with the port to port passing arrangement was the proximate cause of the collision. There is irreconcilable conflict in the testimony as to what occurred shortly before the collision. The burden of proving sole negligence on the part of the Gaelie Prince is upon respondent. The Antigone’s conduct was the initial cause of the catastrophe. Even though a subsequent port to port passing was possible it made scant allowance for a margin of error. If the Antigone had ported her helm immediately and signaled for a port to port passing when she first sighted the Gaelie Prince, or if she had slowed her engines when" }, { "docid": "4170773", "title": "", "text": "convincing to justify the court in holding her also in fault, and doubts about her management should be resolved in her favor. The attempt of the steamship to take the wrong side of channel is sought to be justified by the risk she would have run of touching bottom if she had not directed her course as close as she could to the dredge. But the real distance was 420 feet between the dredge and the northern side of the channel, which was ample for both the steamship and the tug to have passed in safety, and, if the pilot of the steamship did not think so, he could have stopped the steamship before she was abreast of the dredge until the tug had passed, or until he had an assenting signal from the tug showing that she understood that the steamship purposed to pass starboard to starboard, and the tug assented to it. It is well settled that when a vessel which has signaled by two blasts that she intends passing to starboard, instead of to port, and gets no assenting response, it is her duty to stop, reverse, and, if necessar}-, come to a standstill, until the course of the other vessel has been ascertained with certainty and the risk of collision removed. The New York, 175 U. S. 189 — 201, 20 Sup. Ct. 67, 44 L. Ed. 126. I do not find any sufficiently clear proof of any fault committed by the tug." }, { "docid": "4170771", "title": "", "text": "engines full speed astern, but the vessels were then only from 100 to 200 feet apart, and it was too late. The tug had a right to be cautious in coming to the conclusion that the steamship intended to violate the rule and take the wrong side of the channel. Up to the time when they received the two-blast signal, they had a right to suppose the steamship meant to obey the rule. When they received notice by the two blasts that she did not intend to obey the rule, they immediately reversed full speed astern. This she was bound to do, and it was all she could do. The New York, 175 U. S. 187-201, 20 Sup. Ct. 67, 44 L,. Ed. 126. The vessel which undertakes to proceed contrary to the rule, without an assenting signal from the approaching vessel, takes the risk of her signals not being heard and of her not having heard the signals of the other vessel. Not having heard the first signal of two blasts which those on the steamship claim to have given, those on the tug had reason to suppose that at least as soon as the steamship was clear of the dredge V ascot she would go to the starboard, and that the pilot of the steamship had concluded that with her speed she could do it, knowing, as the pilot of the tug did from his familiarity with the location of the dredge, that there was plenty of room for the steamship to pass in the channel to the northward of the dredge. The learned opinion of the Chief Justice in the leading case of The Victory and The Plymothian, 168 U. S. 410, 18 Sup. Ct. 119, 42 L. Ed. 519, settles many points which can he well applied to the present case. The rule is also sanctioned that, where one vessel has caused a collision by disregarding a statutory rule which the other vessel had a right to rely upon being obeyed, the proof of fault on the part of that other vessel should be clear and" }, { "docid": "23088679", "title": "", "text": "the Supreme Court, The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126, is cited; but that steamer was advised by signals, which the court held she was conspicuously in fault for not hearing, that the Conemaugh was about to navigate so as to involve risk of collision, should the New York keep her course and speed. In The Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751, the vessels were meeting end on, or nearly so; and a change of course of the Dumois, evidenced by the shifting of lights, was observable to the Argo, and notice to her that the former was not going to starboard, but, on the contrary, was swinging to port across her bows. The Chicago was seen from the Augusta when leaving her Jersey slip, and again when halfway across the river. Assuming that she was not observed from: the Chicago while the latter was engaged with the Fanwood, we are unable to find in that circumstance a contributing fault, because the navigation of the Augusta was the same as it should have been had the Chicago been observed. As was said before, as soon as the Fanwood swung to one side the Augusta slowed, and almost immediately afterwards again sighted the Chicago, and blew her signals (although under no obligation to do so), which were not answered. The distance between the Chicago and the course of the Augusta had then grown short, but still it was possible for the burdened vessel to have done as the Fanwood did. There is evidence that, under reversed engines and a hard astarboard wheel, such a boat could change direction almost eight points without fore-reaching more than a length and a half. We are of the opinion that it was not fault on the part of the Augusta to hold her course and speed so long as that possibility existed, in the absence of some definite intimation by signal or action that the Chicago was going to fail in her duty. That notification came in the two-blast" }, { "docid": "4170770", "title": "", "text": "975 (affirmed 120 Fed. 455, 56 C. C. A. 605), and to cite the authorities. Among other cases of collisions in the same channels caused by want of adherence to the same rules may be mentioned: The Frostburg (D. C.) 25 Fed. 451, The Virginia and The Louise (D. C.) 49 Fed. 84, and the same case on appeal, 52 Fed. 885, 3 C. C. A. 330. It is next to be considered whether the tug is shown to have committed any fault or disregarded any rule which contributed to the disaster. The testimony on her behalf establishes that the steamship’s signal of two blasts was not heard until quite an interval after the tug’s signal of one blast, and that the tug at once repeated her one. blast and immediately reversed her engines full speed astern, and was at a standstill when the collision occurred. On board the steamship, when they heard the tug’s second signal of one blast (which was the first they heard), the pilot of the steamship at once ordered her engines full speed astern, but the vessels were then only from 100 to 200 feet apart, and it was too late. The tug had a right to be cautious in coming to the conclusion that the steamship intended to violate the rule and take the wrong side of the channel. Up to the time when they received the two-blast signal, they had a right to suppose the steamship meant to obey the rule. When they received notice by the two blasts that she did not intend to obey the rule, they immediately reversed full speed astern. This she was bound to do, and it was all she could do. The New York, 175 U. S. 187-201, 20 Sup. Ct. 67, 44 L,. Ed. 126. The vessel which undertakes to proceed contrary to the rule, without an assenting signal from the approaching vessel, takes the risk of her signals not being heard and of her not having heard the signals of the other vessel. Not having heard the first signal of two blasts which those on" }, { "docid": "23179460", "title": "", "text": "at 1,500 feet, not enough, as he thought, to kill her way before they met. We are not satisfied that this is true, certainly if her speed was under 7 knots; at any rate she has not clearly enough proved that her breach of duty at that moment did not produce the result. A tide makes no difference in the approach of two vessels, which are both floating in it; it is apparent from a moment’s consideration that the acceleration of one is exactly balanced by the retardation of the other, and that when both have seaway the current cannot play any part in the collision. But her duty began before. Her signal had not been answered, and she could not in the nature of things know what the Chinook proposed to do. Under such circumstances a master is bound to stop his way. The New York, 175 U. S. 187, 201, 202, 20 S. Ct. 67, 44 L. Ed. 126; The Albert Dumois, 177 U. S. 240, 251, 252, 20 S. Ct. 595, 44 L. Ed. 751; The Munaires, 1 E.(2d) 13, 15 (C. C. A. 2); U. S. v. Grant, 11 F.(2d) 700 (C. C. A. 1). There is no more important rule, since vessels, though not quite dead, will so reduce their speed that the collision, if it occurs, will be insignificant, as certainly would have been the ease here. Had the Clare done her duty shortly after her first signal — that is, .as soon as she was in doubt as to the Chinook’s navigation — this collision would not have happened. If she had done it' as soon as the Chinook began to swing upon her course, it probably would not have happened. Instead of this, she tried to change the situation to a starboard passing, a hazardous effort at best, when no hazard need have arisen, had she been properly alive. Masters who choose to divine the purposes of other vessels and keep on, may avoid the charge of over-caution, but they take their chances. If they escape, well and good; if they fail," }, { "docid": "13283219", "title": "", "text": "a vessel but two points off her bow, and distant about a mile, was not intended for her. The City of Chester, 78 Fed. 186, 188, 24 C. C. A. 51; The Great Republic, 23 Wall. 31, 23 L. Ed. 55. The construction of the situation most favorable to the Stone is that a doubt was or should have been raised in the mind of her navigator as to the course and intention of the Etruria as affecting the Stone. Indeed, he appears to have actually had such doubt, for the Etruria’s fog signals had caused him to check down his vessel. In so conclusively assuming that the Etruria’s proposed change of course could not affect her, the Stone acted at her peril. It was thus the Stone’s duty, upon hearing these passing signals, to either show her assent thereto, as provided by rule 23, or, if she deemed it unsafe to so assent, or if she had any doubt as to the course or intention of the Etruria as affecting the Stone — that is to say, any doubt whether the passing signal was meant for her — she was under obligation to give the alarm signal required by rule 26, and thereafter to act as the emergency might arise. Her duty at this juncture to answer the Etruria’s passing signal was as strong as that of the Etruria to give the signal before attempting to pass. The New York, 175 U. S. 187, 204, 205, 20 Sup. Ct. 67, 44 L. Ed. 126. The conclusion we have reached, under the undisputed proofs, that each vessel was at fault for the collision, makes it unnecessary to determine the speed of either boat immediately preceding the collision, or to consider the other faults attributed by each vessel to the other. But it is urged on the part of each vessel that the violations of the rules of navigation so appearing on her part could not have contributed to the collision. The fact that a ship was at the time of collision in actual violation of a statutory rule designed to" }, { "docid": "14717438", "title": "", "text": "was even more feasible when the vessels were at a distance of two miles from each other. Proper navigation, therefore, required the Antigone to signal for a port to port passing. Even assuming that the Gaelic Prince was on her own port side o.f the channel, in violation of a statutory duty, nevertheless her first signal to the Antigone, at a time when a port to port passing was possible, was a single blast; this call for port to port passage was proper and susceptible of execution in the circumstances. According to the Antigone's own story, she did not receive from the Gaelie Prince an assent to the two blast signal. Nevertheless, she failed to slacken her speed. This, in itself, is negligent navigation. The Antigone alone could not determine what course the other vessel should take. When a vessel signals for a starboard to starboard passing, she, in effect, merely extends an invitation for an agreement thereto to the other vessel. Yamashita Kisen Kabushiki Kaisha v. McCormick Inter. S. S. Co. (C. C. A.) 20 F.(2d) 25; The New York (C. C. A.) 86 F. 814. If the other steamer fails to assent, or if the course of the latter is uncertain, the signaling vessel is bound to stop. The New York, 175. U. S. 187, 20 S. Ct. 67, 44 L. Ed. 126; The Munaires (C. C. A.) 1 F.(2d) 13; A. H. Bull S. S. Co. v. U. S. (C. C. A.) 34 F.(2d) 614, 616. As was said by the Court of Appeals of this circuit: “A vessel which has signaled by two blasts that she intends passing to starboard instead of to port, and gets no assenting response, is in duty bound to stop, reverse, and, if necessary, come to a standstill, until the course of the other vessel has been ascertained with certainty, and the risk of collision removed.'' The Munaires, 1 F.(2d) 13, 15. See also The Bilbster (C. C. A.) 6 F.(2d) 954; The Sabine Sun (C. G. A.) 33 F.(2d) 42. Even if the distance of the vessels was so great" }, { "docid": "23179459", "title": "", "text": "position, about 500 feet from the east boundary of the channel, the mistake seems inexplicable. These initial misconceptions account for the curious vacillation in her movements, which, taken alone, are not perhaps to be charged against her; she was trying to meet the helm movements of the Clare, which only seemed unaccountable to her because of her disregard of the facts. The Clare’s faults are not quite so clear. The position was right, her signal appropriate, and her first helm movement accorded, not only with her apparent purpose, but with proper navigation, though she was not as much cramped as she says, for she had enough room to starboard. But the Chinook, at her slight speed, was able to move less quickly, and the situation rested more in the Clare’s hands than in hers. While we think that she was at fault before, she was certainly at fault after, seeing the Chinook’s swing to port, which, threw her hows upon the Clare’s proposed course. At that time her master puts the distance between the vessels at 1,500 feet, not enough, as he thought, to kill her way before they met. We are not satisfied that this is true, certainly if her speed was under 7 knots; at any rate she has not clearly enough proved that her breach of duty at that moment did not produce the result. A tide makes no difference in the approach of two vessels, which are both floating in it; it is apparent from a moment’s consideration that the acceleration of one is exactly balanced by the retardation of the other, and that when both have seaway the current cannot play any part in the collision. But her duty began before. Her signal had not been answered, and she could not in the nature of things know what the Chinook proposed to do. Under such circumstances a master is bound to stop his way. The New York, 175 U. S. 187, 201, 202, 20 S. Ct. 67, 44 L. Ed. 126; The Albert Dumois, 177 U. S. 240, 251, 252, 20 S. Ct. 595, 44" }, { "docid": "5943908", "title": "", "text": "starboard, nor were there any other alarm signals to indicate that the Hortensius did not understand the one-blast signal sounded. Again, we think the Hortensius should have slowed or stopped and reversed her engines before “a few seconds before the collision,” when the vessels were one ship’s length away or less. It has long been settled that, if a vessel is approaching another vessel which has disregarded her signals, or whose position or movements are uncertain, she is bound to stop until her course be ascertained for a certainty. The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126. A vessel which has signaled by two blasts that she intends passing to starboard instead of to port, and gets no assenting response, is in duty bound to stop, reverse, and, if necessary, come to a standstill, until the course of the other vessel has been ascertained with certainty, and the risk of collision removed. Chamberlain v. Ward, 21 How. 548, 16 L. Ed. 211; Border Line Transp. Co. v. Canadian Pac. Ry. Co. (D. C.) 262 Fed. 989. The officer in charge of the navigation of the Munaires was in doubt for at least ten minutes before the collision as to the navigation of the Hortensius. She did not reduce her speed in time, nor port her helm, but continued on her course for about five minutes. It was the duty of the Munaires’ navigator, when so in doubt, to slow or stop and reverse her engines under the circumstances which created the doubt and which then confronted him. The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126; The Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751; The Portia, 64 Fed. 811, 12 C. C. A. 427. Jaekson was serving as a quartermaster on the Munaires, but when the vessels collided he was stationed at the after davit along with the third assistant engineer, whom he had asked to assist him. The situation appeared serious, and it was expected that the vessel would" }, { "docid": "13544387", "title": "", "text": "of article 28 of the rules, and, because it obviously operated to the detriment of the Cushing in her navigation, she cannot avoid the consequences of this wrongful maneuver. The Proteus had swung as far as two points before the signal announcing her change of course was sounded, and a minute and a half had elapsed before the one-blast signal was sounded after the hard aporting. The failure to sound that signal cannot be attributed to the absence of lights on the Cushing. It was a necessary signal. She also failed to reverse her engines in the face of a known danger, after discovering the close proximity of the Cushing and her course. Apparently the navigators of the Proteus were under the impression that the Cushing was swinging under a starboard helm, which would have necessarily brought the vessels on intersecting courses; but, despite that assumption, the Proteus was continued at full speed of 13% knots. And the officer in charge said that they did not stop or reverse, “but we were trying to get out of the way.” To fail to reverse the engines in the face of danger is sufficient to. fasten liability upon the Proteus, to charge it with contributing to the collision. Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751; The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 F. Ed. 126; The Volund, 181 Fed. 643, 104 C. C. A. 373. We think the Cushing was at fault in not flashing or setting her lights on, and for failing to give the Proteus a wider berth. The officer of the Cushing reports the collision as occurring at 1:05 a. m. He says that the Proteus was under observation from 12:50 a. m. to the time of the collision. When he first sighted her, he could not determine which way she was going. He continued to observe her, however, and noted that her bearings were getting broader on his bow. The vessels at this time were at least 3 miles apart. The navigating officer of the Cushing," } ]

[ { "docid": "2303700", "title": "", "text": "judgment.” Id. at 252, 106 S.Ct. 2505. It is therefore necessary that “a party opposing summary judgment must present definite, competent evidence to rebut the motion.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). In making this assessment, the court “must view the entire record in the light most hospitable to the party opposing summary judgment, indulging in all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). The court may safely ignore “eonelusory allegations, improbable inferences, and unsupported speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). II. PLAINTIFF’S SURVIVORSHIP CLAIM A. ARTICLE 1802 AND THE “SUCESION” Defendants argue that plaintiffs claim for damages for the pain and suffering endured by Maria Gascot constitutes an inherited cause of action under article 1802. Defendants contend accordingly that all heirs to Maria Gascot’s estate must be joined as parties. In Puerto Rico, two tortious causes of action deriving from an unlawful death arise under article 1802: [O]ne is the personal action of the original victim of the accident for the damages that the same suffered; and the other, the action which corresponds exclusively and by own right to the deceased’s close relatives for the damages the death of their predecessor caused them. Caez v. U.S. Casualty Co., 80 P.R.R. 729, 736. When, as in the instant case, both causes of action are exercised by the heir[ ] of the original victim we can differentiate them by calling one the inherited or patrimonial action and the other the direct or personal action. Widow of Delgado v. Boston Ins. Co., 1 P.R. Offic. Trans. 823, 101 D.P.R. 598 (1973). A decedent’s estate under Puerto Rico inheritance law is called a “sucesión,” which “is the transmission of rights and obligations of a deceased person to his [or her] heirs.... The inheritance includes all of the property, rights and obligations of a person which are not extinguished by his [or her] death ... and is transmitted ... from the moment of his [or her] death.” Id. A sucesión “is not an entity distinct and" } ]

[ { "docid": "11727920", "title": "", "text": "of false information to regulatory investigations. “Equitable estoppel [in the statute of limitations context] suspends the running of the statute of limitations during any period in which the defendant took active steps to prevent the plaintiff from suing.” Barry Aviation, 377 F.3d at 689 (internal citation omitted). The typical example of equitable estoppel is when a defendant “promis[es] the plaintiff not to plead the statute of limitations pending settlement talks.” Singletary v. Continental Ill. Nat’l Bank and Trust Co. of Chicago, 9 F.3d 1236, 1241 (7th Cir.1993). Fraudulent concealment is a type of tolling within the doctrine of equitable estoppel. Fraudulent concealment “presupposes that the plaintiff has discovered, or, as required by the discovery rule, should have discovered, that the defendant injured him, and denotes efforts by the defendant — above and beyond the wrongdoing upon which the plaintiffs claim is founded — to prevent the plaintiff from suing in time.” Cada, 920 F.2d at 451. In order for a plaintiff to benefit from tolling for fraudulent concealment, he must show “that he neither knew nor, in the exercise of due diligence, could reasonably have known of the offense.” Klehr v. A.O. Smith Corp., 521 U.S. 179, 194-95, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997) (holding that “reasonable diligence” was required to invoke the doctrine of fraudulent concealment in the context of civil RICO by analogy to antitrust cases). The district court found that the plaintiffs could not benefit from tolling on the ground of fraudulent concealment because “[t]o sustain such a claim at trial, plaintiffs would have to prove that defendants took active steps to prevent plaintiffs from suing before the statutory deadline.” After reviewing considerable quantities of discovery materials, plaintiffs have unearthed three incidents that they contend add up to obstructionism sufficient to entitle plaintiffs to claim equitable estoppel. Defendants’ managing director of global commodities made an allegedly untruthful statement to examiners of the Federal Reserve Bank and New York State Banking Department that defendants had had no suspicion about Hamanaka’s dealings and no concern that a March 1996 trade with Sumitomo was unauthorized; defendants’ London head of" }, { "docid": "3676326", "title": "", "text": "553, 120 S.Ct. at 1080. This approach did not require any knowledge of the other RICO elements. All but one of the remaining Courts adopted the “injury and pattern discovery rule ... under which a civil RICO claim accrues only when the claimant discovers, or should discover, both an injury and a pattern of RICO activity.” Id. We alone adopted a third variant, the “last predicate act” rule. See Keystone Ins. Co. v. Houghton, 863 F.2d 1125 (3d Cir.1988). From a plaintiffs perspective, this was the most lenient approach: “Under this rule, the period began to run as soon as the plaintiff knew or should have known of the injury and the pattern of racketeering activity, but began to run anew upon each predicate act forming part of the same pattern.” Rotella, 528 U.S. at 554, 120 S.Ct. at 1080. In 1997, the Supreme Court “cut the possibilities by one,” rejecting our last predicate act rule. Id. (discussing Klehr v. A.O. Smith Corp., 521 U.S. 179, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997)). The Court based its holding on two arguments: (1) the rule created a limitations period “longer than Congress could have contemplated,” which conflicted “with a basic objective — repose—that underlies limitations periods,” and (2) it conflicted with the “ordinary Clayton Act rule” applicable in private antitrust actions. Klehr, 521 U.S. at 187-88, 117 S.Ct. at 1989-90. In 2000, the Court again narrowed the possible approaches by rejecting the injury and pattern discovery rule. See Rotella, 528 U.S. at 555-559, 120 S.Ct. at 1080-83. The Court stressed the “basic policies of all limitations provisions: repose, elimination of stale claims, and certainty about a plaintiffs opportunity for recovery and a defendant’s potential liability.” Id. at 555, 120 S.Ct. at 1081. In addition, the Court noted that the injury discovery rule would encourage plaintiffs to investigate their claims earlier and with greater vigor. See id. at 557, 120 S.Ct. at 1082. (noting that the object of civil RICO is “not merely to compensate victims but to turn them into prosecutors, ‘private attorneys general,’ dedicated to eliminating racketeering activity”). In the" }, { "docid": "2303712", "title": "", "text": "article 333 of the Civil Code which states: “Each one of the part-owners shall have the absolute ownership of his part and that of the fruits and profits belonging thereto, and he may, therefore, sell, assign, or mortgage the same, and even substitute another person in the enjoyment thereof, or lease such part, unless personal rights are involved.” Id. at 595-96. Laws of P.R. Ann. tit. 31 § 1278. Twelve years later in Widow of Delgado, the Supreme Court of Puerto Rico recognized article 1802 as the source of the inherited or patrimonial action and the direct or personal action. The supreme court explicitly stated that “one is the personal action of the original victim of the accident for the damages the same suffered; and the other, the action which corresponds exclusively and by own right to the deceased’s close relatives for the damages the death of their predecessor caused them.” 1 P.R. Offie. Trans. 823, 101 D.P.R. 598 (emphasis added). The supreme court cited article 608 of the Puerto Rico Civil Code to iterate that an inheritance includes all property, rights, and obligations of a decedent and that heirs succeed the decedent in all of his or her rights upon the decedent’s death. Id. Laws of P.R. Ann. tit. 31 § 2090. An original victim’s right to claim for serious damages resulting from pain and suffering before his or her death “is a property privately owned, transmitted by his [or her] death to his [or her] heirs and claimable by the latter as a part which it is of their legal inheritance.” Id. Moreover, the heirs of a decedent have an “unquestionable juridical and economical interest” in an inherited cause of action. Id. The following year in Tropigas, the supreme court cited several commentators on the Spanish Civil Code to support its finding that any of a decedent’s heirs may exercise an action because it will benefit all the other heirs. 102 D.P.R. 630 (1974). One commentator wrote that when an inheritance remains undivided, each one of the heirs may “exercise the actions corresponding to the deceased, provided they" }, { "docid": "12977047", "title": "", "text": "applies to 11 U.S.C. § 549(d)); Ernst & Young v. Matsumoto (In re United Ins. Management, Inc.), 14 F.3d 1380, 1384-85 (9th Cir.1994) (same, 11 U.S.C. § 546(a)); Gurney v. Arizona Dept. of Revenue, 192 B.R. 529, 538-39 (9th Cir. BAP 1996) (same, 11 U.S.C. § 507(a)). As noted in Gurney, “the federal courts are never powerless to equitably toll the limitations period to prevent injustice unless Congress expressly provides otherwise.” The leading statement in federal jurisprudence of the precise distinctions between equitable estoppel and equitable tolling and of their exceptions is the Seventh Circuit’s decision in Coda v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990), cert. denied, 501 U.S. 1261, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991), cited with approval, United States v. Ibarra, 502 U.S. 1, 4 n. 1, 112 S.Ct. 4, 5 n. 1, 116 L.Ed.2d 1 (1991). Equitable estoppel and equitable tolling, which are often both described by the ambiguous generic terms “tolling” or “equitable tolling,” are distinct doctrines that are often confused with each other. These “tolling” doctrines of equity are, in turn, often confused with the discovery or “accrual” rule, which relates to when a limitations period “accrues,” i.e. begins to run. Cada, at 450-51. Our focus is on two distinct tolling doctrines of equity jurisprudence, equitable tolling and equitable estoppel, which doctrines apply to stop a limitations period from continuing to run after it has already begun to run. Equitable tolling permits one to avoid a bar of a statute of limitations when, despite all due diligence, vital information relating to the ability to pursue the claim cannot be obtained. Holmberg, 327 U.S. at 397, 66 S.Ct. at 585; Cada, 920 F.2d at 451. Equitable tolling does not require any conduct by the other party. Holmberg, 327 U.S. at 397, 66 S.Ct. at 585; Cada, 920 F.2d at 452. All one need show is that by the exercise of reasonable diligence the proponent of tolling could not have discovered essential information bearing on the claim. United Ins. Management, 14 F.3d at 1386; Gerritsen v. Consulado General De Mexico, 989 F.2d 340, 344" }, { "docid": "20778556", "title": "", "text": "as to whether his claims, as alleged in the original complaint, survive his death. It is unlikely that plaintiff Medina-Mercado’s claims, as alleged in the initial complaint, would be extinguished upon his death. In the original complaint, plaintiff Medina-Mercado asserted violations of his constitutional and civil rights under 42 U.S.C. § 1983. “In Moor v. Alameda County, ... the U.S. Supreme Court recognized that 42 U.S.C. § 1983 does not address the issue of the survivorship of civil rights actions upon the death of a plaintiff or a defendant. It stated that ‘[although an injured party’s personal claim was extinguished at common law upon the death of either the injured party himself or the alleged wrongdoer ... it has been held that pursuant to § 1988 state survivorship statutes which reverse the common-law rule may be used in the context of actions brought under § 1983.’ ” Ferrer Encarnacion v. Betancourt y Lebron, 855 F.Supp. 528, 529 (D.P.R.1994) (quoting Moor v. Alameda County, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973)). However, “[i]n Puerto Rico, no survivorship statute exists concerning tort cases in general. But the Puerto Rico Supreme Court has stated that a survivorship statute is unnecessary because survivorship is encompassed within the remedial character of Puerto Rico tort law as expressed in P.R. Laws Ann. tit. 31, § 5141 (1991), which states that ‘[a] person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done.’ ” Ferrer Encarnacion v. Betancourt y Lebron, 855 F.Supp. at 529-30. In Ferrer, the court was faced with determining whether a civil action under section 5141 was extinguished with the death of the defendant. Id. at 529-30. The court analyzed Vda. de Delgado v. Boston Ins. Co., 101 D.P.R. 598 (1973), 101 P.R. Offic. Trans. 824 (1973), and concluded that an action under section 5141 survives the death of the defendant. Ferrer Encarnacion v. Betancourt y Lebron, 855 F.Supp. at 530. The Delgado court held that although “very personal rights” do not survive, a cause" }, { "docid": "23045460", "title": "", "text": "period in the Securities Exchange Act of 1934, for example, doesn’t begin to run until the plaintiff discovers ‘the facts constituting the violation.’ But RICO requires discovery only of the injury and the injurer.” (citing Merck, 130 S.Ct. at 1796-97)) (citation omitted). There is a presumption that the Supreme Court does not overrule itself sub silentio. See, e.g., Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality”). Merck never men tioned Rotella and did not discuss the rationale for the discovery of the injury rule that Rotella adopted. The underlying rationale of the Court’s decisions in both Rotella and Klehr v. A.O. Smith Corp., 521 U.S. 179, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997), upon which Rotella relied, was concerned with the lengthy limitations period that would flow from a “last predicate act” discovery rule, Klehr, 521 U.S. at 186, 117 S.Ct. 1984, or an “injury and pattern discovery rule,” Rotella, 528 U.S. at 554, 120 S.Ct. 1075. The Supreme Court rejected these because they “would allow proof of a defendant’s acts even more remote from time of trial and, hence, litigation even more at odds with the basic policies of all limitations provisions: repose, elimination of stale claims, and certainty about a plaintiffs opportunity for recovery and a defendant’s potential liabilities.” Id. at 555, 120 S.Ct. 1075. In Rotella, the appellant proposed an “accrual rule softened by a pattern discovery feature.” Id. at 558, 120 S.Ct. 1075. Koch proposes an accrual rule softened by a scienter discovery feature. Here, as in Rotella, such a softening feature “would undercut every single policy” served by limitations provisions. Id. at 558-59, 120 S.Ct. 1075 (“A limitations period that would have begun to run only eight years after a claim became ripe would bar repose, prove a godsend to stale claims, and doom any hope of certainty in identifying potential liability.”). It would also dilute the incentive of private attorneys general diligently to" }, { "docid": "2303717", "title": "", "text": "and other Puerto Rico case law. Describing the two tortious causes of action that arise out of a wrongful death under article 1802, the Supreme Court of Puerto Rico stated that only “one is the personal action of the original victim of the accident for the damages the same suffered....” 1 P.R. Offic. Trans. 823, 101 D.P.R. 598 (emphasis added). An inherited action such as plaintiffs wrongful death action here is “a personal action of the original victim of the accident for the damages that the same suffered,” Widow of Delgado, 1 P.R. Offic. Trans. 823, 101 D.P.R. 598, and a wrongful death judgment “belong[s] to the undivided estate.” See Jimenez, 597 F.3d at 26. As such, no individual heir may be the “sole and exclusive owner of any particular portion,” or have any “specific right to certain properties,” of the estate. Velilla, 17 P.R.R. at 1074. Because plaintiff Maribel Cruz has filed her survivorship claim “on her own behalf and not as a representative of Mrs. Gascoh-Pagan’s estate,” (Docket No. 60 at 14), she seeks to attain certain damages as a sole owner of the inherited claim (or her part in it). The Court finds this to be contrary to what is set forth in article 1802 that only one cause of action exists for the personal action of the original victim. Otherwise, a question would remain as to whether the other heirs to Maria Gascot’s estate could file similar, additional suits. Under Puerto Rico property law, furthermore, a thing or a right is “owned in common” when it belongs undividedly to many people. 31 L.P.R.A. § 1271. When two or more persons are titleholders to the same right, or that right is attributed to a plurality of subjects, the right belongs to all of them in common. Asociacion Residentes Urb. Sagrado Corazon v. Arsuaga Alvarez, 160 D.P.R. 289, 306-07 (2003). In Sagrado Corazon, the Supreme Court of Puerto Rico reasoned that the right that each co-participant has for the communal thing is necessarily subordinate to the rights of all of the other co-participants. Sagrado Corazon, 160 D.P.R. at" }, { "docid": "14745224", "title": "", "text": "state” as long as these are not “inconsistent with the Constitution and laws of the United States.” 42 U.S.C. § 1988. One area that is not covered by federal law is that relating to “the survival of civil rights actions under § 1983 upon the death of either plaintiff or defendant”. Jaco v. Bloechle, 739 F.2d 239, 241 (6th Cir.1984). The law of the forum state is thus “the principle reference point in determining survival of civil rights actions”. Robertson, 436 U.S.at 590, 98 S.Ct. 1991. A review of Puerto Rican law is in order. Puerto Rico does not have a surviv-orship statute dealing with tort cases in general. Rivera v. Medina, 963 F.Supp. 78, 84 (D.P.R.1997) (Citing Ferrer Encarnacion v. Betancourt y Lebron, 855 F.Supp. 528 (D.P.R.1994)). However, the Supreme Court of Puerto Rico has ruled that survivorship is generally encompassed within Article 1802 of the Civil Code, Puerto Rico’s general tort provision. Id. (Citing Vda. de Delgado v. Boston Ins. Co., 101 P.R.Dec. 598, 603 (1973)). Under Article 1802 damages for the conscious pain and suffering of plaintiffs decedent, as opposed to damages for his immediate death, are recoverable in a wrongful death negligence cases. Vda. de Delgado v. Boston Insurance, 101 P.R. Dec. 598 (1973); Consejo de Titulares v. C.R.U.V., 132 P.R. Dec. 707 (1993); See Also Morales v. United States, 642 F.Supp. 269, 273 (D.P.R.1986). If Plaintiffs had brought this action in the Puerto Rican court system rather than in federal court, they would have brought a wrongful death case. Applying the state’s legal reasoning to the case at hand, the Court concludes that Puerto Rican law permits an heir to bring a § 1983 action in his representative capacity only when there is a showing that the deceased has suffered prior to his death. There is no question, and Defendants do not contend the fact that, Mr. Sierra suffered pain and discomfort prior to his death. Puerto Rican law allows his pain and suffering to transmit to his immediate heirs who can bring an action claiming damages for the deceased’s pain. As such, Jesus Maduro" }, { "docid": "10678774", "title": "", "text": "in the Securities Exchange Act of 1934, for example, doesn’t begin to run until the plaintiff discovers “the facts constituting the violation.” 28 U.S.C. § 1658(b)(1); see Merck & Co. v. Reynolds, — U.S.-, 130 S.Ct. 1784, 1796-97, 176 L.Ed.2d 582 (2010). But RICO requires discovery only of the injury and the injurer. Yet we said that the defendants’ obstructive behavior may have prevented the plaintiffs from obtaining enough information before 2005 to know they’d sustained a legal injury and by whom it had been inflicted. But that did not automatically give them four more years to sue. Tolling doctrines need not extend the date on which the statute of limitations begins to run; for as soon as the tolling events cease — in a case of equitable estoppel, as soon as the defendants’ obstructive behavior ceases — ’the plaintiffs should get to work and file suit as soon as is practicable, in order to minimize the inroads that dilatory filing makes into the policies served by statutes of limitations. Certainly this is true with regard to equitable tolling, where, through no fault of the defendant (unlike equitable estoppel), the plaintiff has though diligent been unable to discover the injury or injurer within the statutory period. But there is a division of authority over whether the rule should be the same when the basis of tolling is the defendant’s misconduct, giving rise to equitable estoppel. As we pointed out in Gaiman v. McFarlane, 360 F.3d 644, 656 (7th Cir.2004), some cases hold that even in that case the plaintiff “must sue as soon as it is feasible to do so,” while “other [cases], distinguishing equitable estoppel, where the defendant is responsible for the plaintiffs delay, from equitable tolling, where he is not, hold that in the former case though not the latter the plaintiff can subtract the entire period of the delay induced by the defendant, or in other words can extend the statutory period by the full amount of the delay,” and “at least one case [Buttry v. General Signal Corp., 68 F.3d 1488, 1494 (2d Cir. 1995) ]" }, { "docid": "19907895", "title": "", "text": "Nonetheless, we think Plaintiff should be permitted on this record to rely on § 255. Considering the fact that the issue was raised, albeit in incomplete fashion, in the district court, together with the several factors enumerated above that favor granting Plaintiff a reprieve, we have concluded that this is an instance in which a party will be allowed on appeal to rely on an argument of law which the party did not develop in the district court as fully as it should have. CONCLUSION For the foregoing reasons, we vacate the judgment of the district court dismissing the suit, and remand for further proceedings. Costs are taxed in favor of the Appellant. . On June 22, 2004, the initial, April 20, 2004 complaint was dismissed without prejudice because Plaintiff lacked local counsel. Plaintiff re-filed the complaint on June 21, 2005. The parties agree that April 20, 2004 is the relevant filing date for statute of limitations purposes. . The Puerto Rico tort statute provides: \"A person who by an act or omission causes damage to another through fault or negli gence shall be obliged to repair the damage so done.” 31 L.P.R.A. § 5141. . Under Puerto Rico law, the tort of wrongful death gives rise to two separate actions: \"one is the personal action of the original victim of the accident for the damages that the same suffered; and the other, the action which corresponds exclusively and by own right to the deceased’s close relatives for the damages the death of their predecessor caused them.” Viuda de Delgado v. Boston Ins. Co., 101 D.P.R. 598, 602 (1973), translation available at 1973 WL 35626. . The Defendants contend § 255 applies only to estates constituted under Puerto Rico law and is therefore inapplicable to Juana's estate established under New York law. This misreads § 255, which extends the statute of limitations for such inherited claims without suggesting in any way that it applies only to estates probated in Puerto Rico. . The Defendants also contend that Zoraida was ineligible to bring the inherited claim for her mother's suffering for" }, { "docid": "10731577", "title": "", "text": "of Actions § 139, at 601 (2011) (noting that a breach “occurs when a party fails to perform when performance is due”). Given this general principle, and the dearth of any Puerto Rico authority on point, we see no basis to assume that the Puerto Rico Supreme Court would extend the continuing violation doctrine to Act 75 claims. In fact, that conclusion is all the more likely because, when that court has considered mechanisms that might prolong Act 75’s limitation period, the court has emphasized the need for expeditious resolution of commercial disputes. In an effort to “encourage diligence and speed in commercial relations” and to “expedite mer cantile traffic,” the court has held that the restrictive tolling provisions of the Commerce Code, not the more generous provisions of the Civil Code, apply to Act 75. Pacheco v. Nat'l W. Life Ins. Co., 122 P.R. Dec. 55, 22 P.R. Offic. Trans. 49, 60 (1988). To nevertheless apply the continuing violation doctrine here — and allow QCP to assert a claim eleven years after SCA’s alleged breach — would permit QCP to more than triple Act 75’s limitations period. That result would directly conflict with Pacheco’s rationale. Ultimately, we see no basis to apply the continuing violation doctrine to Act 75 and thus prolong the statute of limitations. “A federal court sitting in diversity cannot be expected to create new doctrines expanding state law.” Gill v. Gulfstream Park Racing Ass’n, 399 F.3d 391, 402 (1st Cir.2005). ii. The Discovery Rule QCP also raises the discovery rule as an alternative ground to escape the limitations bar, claiming that it had no knowledge of SCA’s alleged breach until 2011. The rule “delays accrual of a cause of action until the plaintiff has ‘discovered’ it.” Merck & Co., Inc. v. Reynolds, 559 U.S. 633, 645, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010). The Puerto Rico Civil Code’s general statute of limitations explicitly includes a discovery rule.' See P.R. Laws Ann.- tit. 31, § 5298 (statutory period runs “from the time the aggrieved person had knowledge” of the injury); see also Colón Prieto v. Géigel," }, { "docid": "14745225", "title": "", "text": "pain and suffering of plaintiffs decedent, as opposed to damages for his immediate death, are recoverable in a wrongful death negligence cases. Vda. de Delgado v. Boston Insurance, 101 P.R. Dec. 598 (1973); Consejo de Titulares v. C.R.U.V., 132 P.R. Dec. 707 (1993); See Also Morales v. United States, 642 F.Supp. 269, 273 (D.P.R.1986). If Plaintiffs had brought this action in the Puerto Rican court system rather than in federal court, they would have brought a wrongful death case. Applying the state’s legal reasoning to the case at hand, the Court concludes that Puerto Rican law permits an heir to bring a § 1983 action in his representative capacity only when there is a showing that the deceased has suffered prior to his death. There is no question, and Defendants do not contend the fact that, Mr. Sierra suffered pain and discomfort prior to his death. Puerto Rican law allows his pain and suffering to transmit to his immediate heirs who can bring an action claiming damages for the deceased’s pain. As such, Jesus Maduro and his mother Emily Maduro, as his legal guardian, have standing in their representative capacity. See Arroyo v. Pla, 748 F.Supp. 56, 58 (D.P.R. 1990); Velazquez-Martinez v. Colon, 961 F.Supp. 362, 364 (D.P.R.1997). THE COMPLAINT FAILS TO ALLEGES SUFFICIENT FACTS AGAINST DEFENDANT ROSELLO AND HIS CONJUGAL PARTNERSHIP Defendant Rosello asserts that the Complaint fails to state sufficient facts that would allow Plaintiffs to recover from him in his individual capacity. Rosello argues that the Complaint, as it relates to him, should be dismissed. In order to establish a cognizable claim under 42 U.S.C. § 1983, Plaintiffs must not only demonstrate that Defendants, acting under color of law, deprived them of a federally protected right but must also prove that the name defendants were personally involved in such violation. See Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Pinto v. Jimenez Nettleship, 737 F.2d 130 (1st Cir.1984). A supervisor may thus be found liable under § 1983 only" }, { "docid": "12272583", "title": "", "text": "enough information to warrant an investigation which, if reasonably diligent, would lead to discovery of the claim. See id. at 1110 (citing Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 275 (9th Cir. 1988)). Once the injury is discovered, a RICO plaintiff is responsible for determining within the limitations period whether their injury was caused by a RICO scheme. See Rotella v. Wood, 528 U.S. 549, 120 S.Ct. 1075, 1081, 145 L.Ed.2d 1047 (2000) (analogizing RICO plaintiff to a medical malpractice plaintiff, who is “responsible for determining within the limitations period then running whether the inadequacy was malpractice”). The purpose of the RICO private right of action is to “encourag[e] civil litigation to supplement Government efforts to deter and penalize the ... prohibited practices.” Id. at 1082. Civil RICO’s “treble damages [are] accordingly justified by the expected benefit of suppressing racketeering activity, an object pursued the sooner the better.” Id. The United States Supreme Court has acknowledged that “considerable effort may be required before a RICO plaintiff can tell whether a pattern of racketeering is demonstrable.” Id. at 1081. Nevertheless, the Court found that the “complex, concealed, or fraudulent” nature of a RICO pattern does not impair a plaintiffs ability to investigate the cause of his injury to a degree that justifies an injury and pattern discovery rule. Id. at 1081-82. The Former Employee Defendants argue that Klehr v. A.O. Smith Corp., 521 U.S. 179, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997) holds that “predicate acts outside of the limitations period may not be considered” or, to put it another way, they argue the Court should ignore facts occurring before the Imitations period because such facts “cannot give rise to RICO liability/’ FE Mot. at 19. They are incorrect. The Court in Klehr held that the occurrence of a new predicate act within the limitation period does not allow plaintiffs to recover for injury caused by acts outside the limitation period. Id. at 189, 117 S.Ct. 1984. Plaintiffs have to show that the new act caused new harm, rather than simply using the new act as a hook" }, { "docid": "14916491", "title": "", "text": "rule. See Rotella v. Wood, 528 U.S. 549, 553, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000). In Klehr v. A.O. Smith Corp., 521 U.S. 179, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997), the Supreme Court rejected the last-predicate-act rule, which postponed the running of the statute of limitations until the commission of the last predicate act that formed the pattern of racketeering upon which the plaintiffs claim was based, regardless of when the plaintiff had knowledge of its injury resulting from the defendant’s racketeering. See also, Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1130 (3d Cir.1988), overruled by Klehr (stating the “last predicate act” rule). The Court gave two reasons why this rule was not appropriate: it was not consistent with the accrual rule from the Clayton Act, and it excessively lengthened the statute of limitations period. Klehr, 521 U.S. at 187-188, 117 S.Ct. 1984. The Court stated that such a rule “would permit plaintiffs who know of the defendant’s pattern of activity simply to wait, ‘sleeping on their rights,’ ... as the pattern continues and treble damages accumulate, perhaps bringing suit only long after the ‘memories of witnesses have faded or evidence is lost.’ ” Id. In Rotella, 528 U.S. 549, 120 S.Ct. 1075, 145 L.Ed.2d 1047, the Supreme Court rejected the discovery-of-injury-and-pattern rule, which postponed the running of the statute of limitations until the plaintiff discovered, or reasonably should have discovered, both (a) the existence and source of his or her injury, and (b) the fact that the injury was part of a pattern. See also Bivens Gardens Office Bldg., Inc. v. Barnett Bank of Florida, Inc., 906 F.2d 1546, 1554-55 (11th Cir.1990). The accrual rule now sanctioned by the Supreme Court for civil RICO claims is the diseovery-of-injury rule, which starts the four year statute of limitations at the point when a victim discovers or reasonably should have discovered his or her injury. See Rotella, 528 U.S. at 558, 120 S.Ct. 1075. b. Equitable tolling The Court in Rotella noted that, “[i]n rejecting [the discovery-of-injury-and-pattern] rule, we do not unsettle the understanding that federal statutes of" }, { "docid": "2303711", "title": "", "text": "of the heritage.” Id. The supreme court interpreted the Civil Code to “confer a right to each and all of the properties of the heritage, but not a specific right to certain properties, which can only be acquired by an adjudication lawfully made in partition proceedings.” Id. In Danz, the Supreme Court of Puerto Rico addressed the trial court’s “conclusion that since the question of law raised by some of the [heirs] had prevailed, all the others were bound by said decision.” 82 P.R.R. at 594. Acknowledging that a sucesión has no existence as a juridical person and is “not an entity distinct and separate from the persons composing [it],” id. at 595, the supreme court found that each heir’s rights should be judged individually because each individual may have a different attitude towards the complaint. Id. at 595. In exploring whether an adverse judgment as to some co-defendant heirs bound all of the other heirs, the supreme court recognized an “individual separability of the interest in the community of property,” id., and applied the article 333 of the Civil Code which states: “Each one of the part-owners shall have the absolute ownership of his part and that of the fruits and profits belonging thereto, and he may, therefore, sell, assign, or mortgage the same, and even substitute another person in the enjoyment thereof, or lease such part, unless personal rights are involved.” Id. at 595-96. Laws of P.R. Ann. tit. 31 § 1278. Twelve years later in Widow of Delgado, the Supreme Court of Puerto Rico recognized article 1802 as the source of the inherited or patrimonial action and the direct or personal action. The supreme court explicitly stated that “one is the personal action of the original victim of the accident for the damages the same suffered; and the other, the action which corresponds exclusively and by own right to the deceased’s close relatives for the damages the death of their predecessor caused them.” 1 P.R. Offie. Trans. 823, 101 D.P.R. 598 (emphasis added). The supreme court cited article 608 of the Puerto Rico Civil Code to iterate" }, { "docid": "19907896", "title": "", "text": "to another through fault or negli gence shall be obliged to repair the damage so done.” 31 L.P.R.A. § 5141. . Under Puerto Rico law, the tort of wrongful death gives rise to two separate actions: \"one is the personal action of the original victim of the accident for the damages that the same suffered; and the other, the action which corresponds exclusively and by own right to the deceased’s close relatives for the damages the death of their predecessor caused them.” Viuda de Delgado v. Boston Ins. Co., 101 D.P.R. 598, 602 (1973), translation available at 1973 WL 35626. . The Defendants contend § 255 applies only to estates constituted under Puerto Rico law and is therefore inapplicable to Juana's estate established under New York law. This misreads § 255, which extends the statute of limitations for such inherited claims without suggesting in any way that it applies only to estates probated in Puerto Rico. . The Defendants also contend that Zoraida was ineligible to bring the inherited claim for her mother's suffering for the benefit of the mother's heirs because at the time she brought suit she had not yet been named administratrix of her mother’s estate. The Defendants' motion to dismiss in the district court was based, in part, on that theory, but the district court made no ruling on it. As the Defendants acknowledge, however, Zoraida has since been appointed by a New York court as administratrix of her mother’s estate. Even if it would have been appropriate to dismiss without prejudice before the qualification of an administrator, it appears that deficiency has since been cured. We leave the issue to be dealt with in the first instance in the district court in the event the Defendants make a new motion upon remand. . The Defendants contend Zoraida's claim for her mother’s pain and suffering should be dismissed for lack of diversity because her mother Juana, like the defendants, was a domiciliary of Puerto Rico. The district court did not address this contention. We leave it to the district court to consider in the first instance." }, { "docid": "10678773", "title": "", "text": "limitations period running, rather than the injury from the last predicate act, which might occur decades after the first. Rotella v. Wood, supra, 528 U.S. at 554, 120 S.Ct. 1075; Klehr v. A.O. Smith Corp., supra, 521 U.S. at 186-91, 117 S.Ct. 1984. And the victim doesn’t have to know he’s been injured by a RICO violation, which is to say by a pattern of racketeering activity (that is, a series of predicate acts). Rotella v. Wood, supra, 528 U.S. at 554, 120 S.Ct. 1075. The scope and nature of his legal claims are what he has four years to discover, or more (through invocation of tolling doctrines) if he really needs it. For remember that it’s the discovery of the injury (and injurer), not of the facts that establish a particular legal theory, that starts the limitations period running; the limitations period is the time allowed to the plaintiff for determining the specific violation upon which to base a suit. That at least is the general rule, though there are exceptions; the limitations period in the Securities Exchange Act of 1934, for example, doesn’t begin to run until the plaintiff discovers “the facts constituting the violation.” 28 U.S.C. § 1658(b)(1); see Merck & Co. v. Reynolds, — U.S.-, 130 S.Ct. 1784, 1796-97, 176 L.Ed.2d 582 (2010). But RICO requires discovery only of the injury and the injurer. Yet we said that the defendants’ obstructive behavior may have prevented the plaintiffs from obtaining enough information before 2005 to know they’d sustained a legal injury and by whom it had been inflicted. But that did not automatically give them four more years to sue. Tolling doctrines need not extend the date on which the statute of limitations begins to run; for as soon as the tolling events cease — in a case of equitable estoppel, as soon as the defendants’ obstructive behavior ceases — ’the plaintiffs should get to work and file suit as soon as is practicable, in order to minimize the inroads that dilatory filing makes into the policies served by statutes of limitations. Certainly this is true with" }, { "docid": "23045459", "title": "", "text": "the civil RICO statute is “silent on the issue.” Rotella, 528 U.S. at 555, 120 S.Ct. 1075. In such circumstances, “[federal courts ... generally apply a discovery accrual rule.” Id. “[I]n applying a discovery accrual .rule, ... discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.” Id. Nothing in Merck’s discussion of § 1658(b) purports to alter this well-established rule or even to apply it outside the context of the statute at issue in that case. At bottom, Merck involved a situation where the statute was not silent, but rather stated , that discovery of the facts constituting the “violation” lead to accrual. Merck, in other words, involved a statutory exception to the common law rule discussed in Rotella. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 387 (7th Cir.2010) (“For remember that it’s the discovery of the injury (and injurer) ... that starts the limitations period running.... That at least is the general rule, though there are exceptions; the limitations period in the Securities Exchange Act of 1934, for example, doesn’t begin to run until the plaintiff discovers ‘the facts constituting the violation.’ But RICO requires discovery only of the injury and the injurer.” (citing Merck, 130 S.Ct. at 1796-97)) (citation omitted). There is a presumption that the Supreme Court does not overrule itself sub silentio. See, e.g., Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality”). Merck never men tioned Rotella and did not discuss the rationale for the discovery of the injury rule that Rotella adopted. The underlying rationale of the Court’s decisions in both Rotella and Klehr v. A.O. Smith Corp., 521 U.S. 179, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997), upon which Rotella relied, was concerned with the lengthy limitations period that would flow from a “last predicate act” discovery rule, Klehr, 521 U.S. at 186, 117 S.Ct. 1984, or an" }, { "docid": "3676325", "title": "", "text": "Mathews’ argument that the limitations period should be equitably tolled by Kidder’s fraudulent acts and misrepresentations. Once again, the court assumed that Mathews’ allegations were true, but nonetheless concluded that the Appellants had not exercised “reasonable diligence” and therefore could not benefit from equitable tolling. Mathews filed a timely appeal. III. Accrual Rule The statute of limitations for civil RICO claims has engendered a great deal of controversy. The statute itself does not contain a limitations period. See Rotella v. Wood, 528 U.S. 549, 552, 120 S.Ct. 1075, 1079-80, 145 L.Ed.2d 1047 (2000). As a result, in Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), the Supreme Court relied upon the Clayton Act and adopted an analogous four-year period. However, the Court did not specify when the period began, and three different interpretations arose. A number of Courts of Appeals adopted the “injury discovery accrual rule,” which began the four-year period once “a plaintiff knew or should have known of his injury.” Rotella, 528 U.S. at 553, 120 S.Ct. at 1080. This approach did not require any knowledge of the other RICO elements. All but one of the remaining Courts adopted the “injury and pattern discovery rule ... under which a civil RICO claim accrues only when the claimant discovers, or should discover, both an injury and a pattern of RICO activity.” Id. We alone adopted a third variant, the “last predicate act” rule. See Keystone Ins. Co. v. Houghton, 863 F.2d 1125 (3d Cir.1988). From a plaintiffs perspective, this was the most lenient approach: “Under this rule, the period began to run as soon as the plaintiff knew or should have known of the injury and the pattern of racketeering activity, but began to run anew upon each predicate act forming part of the same pattern.” Rotella, 528 U.S. at 554, 120 S.Ct. at 1080. In 1997, the Supreme Court “cut the possibilities by one,” rejecting our last predicate act rule. Id. (discussing Klehr v. A.O. Smith Corp., 521 U.S. 179, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997)). The Court" }, { "docid": "2303716", "title": "", "text": "that applying this District’s logic in Arias-Rosado, Rodriguez-Rivera, and Ruiz-Hance at “face value” leads to an incongruous result. Plaintiff now enjoys federal jurisdiction and awards “something of a free shot for the non-diverse heirs. Success inures to then-benefit while failure is costless.” Jimenez, 597 F.3d at 26. The court of appeals in Jimenez uncovered a “difficulty” regarding the sufficiency of damages awarded from a successful judgment in federal court. Questioning whether such a judgment would be “sufficient to bind the non-diverse heirs ... or ... would leave those heirs free to double down in the second suit?”, the court of appeals identified an example of the undeveloped authority describing the nature of a sucesión. Jimenez 597 F.3d at 27. Without having sufficient briefing of case law or any authority to support either party’s reasoning in Jimenez, the court of appeals was unable to answer this question. Faced with the undeveloped state of the governing Puerto Rico law, this Court approaches the issue here by first looking to the language set forth in Widow of Delgado and other Puerto Rico case law. Describing the two tortious causes of action that arise out of a wrongful death under article 1802, the Supreme Court of Puerto Rico stated that only “one is the personal action of the original victim of the accident for the damages the same suffered....” 1 P.R. Offic. Trans. 823, 101 D.P.R. 598 (emphasis added). An inherited action such as plaintiffs wrongful death action here is “a personal action of the original victim of the accident for the damages that the same suffered,” Widow of Delgado, 1 P.R. Offic. Trans. 823, 101 D.P.R. 598, and a wrongful death judgment “belong[s] to the undivided estate.” See Jimenez, 597 F.3d at 26. As such, no individual heir may be the “sole and exclusive owner of any particular portion,” or have any “specific right to certain properties,” of the estate. Velilla, 17 P.R.R. at 1074. Because plaintiff Maribel Cruz has filed her survivorship claim “on her own behalf and not as a representative of Mrs. Gascoh-Pagan’s estate,” (Docket No. 60 at 14), she" } ]

[ { "docid": "7074666", "title": "", "text": "provide the NAME OR OFFICIAL TITLE of the agency head or, where appropriate, the department head, may result in the loss of any judicial redress to which you may be entitled. (Please note: For this purpose, Department means the overall national organization, such as the now defunct Department of Health, Education and Welfare, not the local administrative department where you might work.) You must be sure that the proper defendant is named when you file your civil action. (Emphasis in original.) The underscored language can be read as requiring the plaintiff to name either the agency or its head; it is unclear whether “head” modifies only “department” or also “agency,” and the remainder of the letter leaves this ambiguity unresolved. The wording therefore has been repeatedly challenged by courts as “cryptic” and unhelpful to litigants. See Mondy, 845 F.2d at 1052 n. 1; Paulk v. Department of the Air Force, Chanute Air Force Base, 830 F.2d 79, 80 (7th Cir.1987); Williams v. Army and Air Force Exchange Service, 830 F.2d 27, 31 (3d Cir.1987) (“It would be a simple matter * * * to provide in the right to sue letter [clear] information as to who should be named as defendant”). Here, Warren filed his complaint without benefit of counsel, and his pleadings indicate that he is wholly unfamiliar with the law. We cannot fault him for misinterpreting the EEOC’s letter. Furthermore, Warren filed his complaint within thirty days of receiving the letter. At the time he filed his complaint, therefore, Warren was led by the EEOC into believing that he had done everything required of him. Under Baldwin County, this alone might justify the use of equity to toll the limitations period. Cf. Martinez, 738 F.2d at 1110 (tolling limitations period where plaintiff was “lulled into inaction” by the EEOC). In addition to the text of the EEOC’s letter, however, we are influenced by the time which elapsed while the district court considered Warren’s applications to proceed in forma pauperis and have counsel appointed. Over thirty days passed while the district court considered these motions, and at least one" } ]

[ { "docid": "7200831", "title": "", "text": "period. Further, the court should give the plaintiff a reasonable time after appointment of counsel to file suit.”) (internal citation omitted); Paulk v. Dept. of Air Force, Chanute Air Force Base, 830 F.2d 79, 83 (7th Cir.1987) (statute of limitations should be tolled during pendency of application and “for a reasonable time thereafter.”) (citing Harris, 456 F.2d at 591-92). In Jarrett v. U.S. Sprint Communications Co., a case cited by the defendant, the Tenth Circuit held that a Title VII complaint was not timely filed when the plaintiff waited five months after the Court denied the IFP application to file the complaint with the filing fee. 22 F.3d at 259. The court concluded that five months was an unreasonable amount of time and did not fall within any possible “grace period.” See id. Even the Jarrett court, however, tolled the time period for three extra days, apparently to account for mailing of notice. Id. (“[W]e hold that the 90-day limitation period was only tolled for those four days [while the IFP application was pending], and the additional three days required by Fed.R.CivJP. 6(e).”). Basic fairness also counsels that the time limit should be tolled for a reasonable time period to account for notice of the Court’s ruling on the IFP application. It is axiomatic that the plaintiff will be unaware that the Court has ruled on his pending application — and thus that his statutory time period has begun to run again — until he receives notice of the ruling from the Court. It would be an overly harsh rule to expect a plaintiff to file a complaint along with a filing fee when he remains under the reasonable belief that his application to proceed in forma pauperis on the very same complaint is still pending before the Court. Finally, the Court notes that several of the cases that appear to stand for the rule that tolling only continues during the pendency of an IFP application were cases in which the IFP application was, in fact, granted, and the complaint was thus immediately filed upon the court’s decision without any" }, { "docid": "15026890", "title": "", "text": "the defendant has engaged in “affirmative misconduct ... [that] lulled the plaintiff into inaction,” or where “the court has led the plaintiff to believe that she ha[s] done everything required of her.” Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984) (per curiam). The only one of these circumstances even arguably applicable to Ms. Mumphrey is that relating to the court’s actions through the clerk. Other courts have permitted equitable tolling where a court clerk explicitly advised the plaintiff that the filing of a motion to proceed in forma pauperis would halt the running of the filing period, see Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir.1983), and where the judge unilaterally declared in the order granting in forma pauperis status that the case was to be considered as having been filed as of the file date of the in forma pauperis petition, see Carlile v. South Routt School District, RE 3-J, 652 F.2d 981, 986 (10th Cir.1981). One court has suggested that an in forma pauperis application accompanied by a right-to-sue notice might require equitable tolling. See Gardner v. U.S. Steel, 670 F.Supp. 1411, 1413 (N.D.Ind.1987). Another court has implied that the clerk’s stamping “received” on a complaint might be sufficient to require equitable tolling. See Bell v. Veterans Administration Hospital, 654 F.Supp. 69, 70 (W.D.La.1987), aff'd, 826 F.2d 357 (5th Cir.1987). None of those events, however, is alleged here. Ms. Humphrey’s affidavit says nothing that would permit the court to infer that the clerk misled her, or, indeed, even spoke with her about the pleadings she brought to be filed, and it is apparently undisputed that the in forma pauperis application had no attachments. Under these circumstances, the court must hold that equitable tolling is not appropriate in this case. The race and sex discrimination claims under Title VII are therefore dismissed with prejudice. III. Ms. Humphrey’s remaining claims are for breach of implied covenant of fair dealing, wrongful discharge, and outrage under state law. Since diversity exists between Ms. Mumphrey and defendant James River" }, { "docid": "1424322", "title": "", "text": "Id. at 50. Although the plaintiff here filed an application to proceed in forma pauperis, and not a request for court-appointed counsel, the court finds that the same equitable considerations warrant a tolling of the filing period in this case. See Paulk v. Department of the Air Force, 830 F.2d 79, 83, (7th Cir.1987); see also Coulibaly v. T.G.I. Friday’s, Inc., 623 F.Supp. 860, 861, 863 n. 2 (S.D.Ind.1985) (reaching the same conclusion relying on Harris v. National Tea Company, 454 F.2d 307 (7th Cir.1971) and Brown, 756 F.2d 48). However, the Brown court expressly held that in order to toll the running of the filing period under Title VII, the plaintiff’s application for appointment of counsel must be “combined with presentation of a Notice of Right to Sue.” Id. In the present case, plaintiff Gardner filed only an application to proceed in forma pauperis during the 90-day period; he did not include a copy of his right-to-sue letter. Thus, it is not clear that Gardner is entitled to the special tolling rule as set out by the Brown decision. The court does not need to decide if the failure to include a copy of the right-to-sue letter should bar the application of the Brown-tolling doctrine in this case, for even if the 90-day filing period were tolled for the five days it took the court to rule on his pauper application, Gardner’s complaint would still come 134 days too late. Gardner’s right-to-sue letter was issued September 30, 1986 which put his original 90-day deadline at December 9, 1986; adding five days for the time it took the court to deny Gardner’s in forma pauperis application extends his deadline to December 14, 1986; he did not actually file his complaint until April 27, 1987, 134 days after his extended deadline. By any reading of the tolling doctrine in Brown, Gardner’s complaint was not timely. In response, Gardner seeks equitable tolling on two alternative grounds. First, Gardner argues that his poor finan cial situation warrants equitable tolling in order to make his April 27, 1987 filing timely. As USX correctly points" }, { "docid": "15883045", "title": "", "text": "filing date of January 31, 2005, asserts that plaintiff failed to file his complaint within 90 days of his receipt of the right-to-sue notice issued to him on June 22, 2004. See 42 U.S.C. § 2000e-5(f)(l) (establishing 90-day limitations period). Plaintiff counters that he filed the complaint on September 23, 2004. The presumed receipt date is three days from the date of the notice. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). Plaintiffs complaint therefore would be timely under his asserted date'. Although the electronic record bears no witness to plaintiffs assertion, an internal court document and a letter to plaintiff from the Clerk of Court fully support plaintiffs claim that the original complaint (dated September 23, 2004) was submitted with an application to proceed informa pauper-is (dated same) on September 23, 2004. The internal document reveals further that in early October 2004, the complaint was subjected to the court’s screening procedures for actions submitted with in forma paupens applications, but the Clerk’s Office misplaced the papers. The Clerk’s jacket contains correspondence between plaintiff and the Clerk of Court. By letter of March 22, 2005, the Clerk, in responding to plaintiffs inquiry about his submissions, stated that her office “talked to the judge in the case and the original file date of your case will have no bearing on the case- — -whether it is file stamped September 2004 or January 2005.” The complaint was formally filed on January 31, 2005, when the Court granted plaintiffs motion to proceed in forma pauperis. Title VII litigants are “not responsible for the administrative delay associated with the Court’s review of petitions to proceed in forma pauper-is.... [T]he presentation of a complaint [and] a petition to proceed in forma pauperis tolls the ninety-day period of limitations ...” (citations omitted); accord Washington v. White, 231 F.Supp.2d 71, 75-76 (D.D.C.2002) (citing cases). Plaintiff timely submitted his complaint within 90 days of his presumed receipt of the right-to-sue notice. Defendant’s motion based on untimeliness therefore is denied. 2. The Merits of the Complaint Title" }, { "docid": "7200824", "title": "", "text": "should be three or five days of presumptive notice); Washington v. White, 231 F.Supp.2d 71, 75 (D.D.C.2002) (applying the five-day presumption where the certificate of mailing stated that the EEOC “will presume that [its] decision was received within five (5) calendar days after it was mailed”). In Ruiz v. Vilsack, a court in this district applied the longer five-day presumption because the certificate of mailing accompanying the right-to-sue letter specified a five-day period. 763 F.Supp.2d at 171 (citing Washington, 231 F.Supp.2d at 75). In this case, the EEOC right-to-sue letter was mailed on November 30, 2010. Pl.’s Ex. F at 1. The record here does not appear to contain any certificate of mailing or other documents indicating a particular presumptive notice period. Even so, in light of the five-day notice periods applied in Ruiz and Washington, and considering the plaintiffs pro se status, the Court finds it reasonable to apply the five-day presumption here. Thus, the plaintiff will be deemed to have received the EEOC’s decision on December 5, 2010. Without the benefit of any tolling, the plaintiffs Complaint would therefore have been due within 90 days of December 5, 2010 — that is, by March 5, 2011. B. The Statutory Time Period Was Tolled During the Pendency of the Plaintiffs IFP Application and for a Reasonable Time Thereafter. On February 24, 2011, well within the time limit, the plaintiff attempted to initiate his suit against the defendant in this Court by filing an Application to Proceed Without Prepayment of Fees — also known as an application to proceed “in forma pauperis ” or “IFP.” Pl.’s Opp’n to Def.’s Mot. to Dismiss 3. It is well settled — and essentially conceded by the defendant — that the statutory filing period is tolled while such an application to proceed IFP is pending before the Court. See Def.’s Reply Mem. in Supp. of Mot. to Dismiss at 2; see, e.g., Ruiz, 763 F.Supp.2d at 172 (“[T]he filing of a complaint along with an IFP application ... tolls the ninety-day period of limitations contained in the right to sue letter during the Court’s" }, { "docid": "7200825", "title": "", "text": "tolling, the plaintiffs Complaint would therefore have been due within 90 days of December 5, 2010 — that is, by March 5, 2011. B. The Statutory Time Period Was Tolled During the Pendency of the Plaintiffs IFP Application and for a Reasonable Time Thereafter. On February 24, 2011, well within the time limit, the plaintiff attempted to initiate his suit against the defendant in this Court by filing an Application to Proceed Without Prepayment of Fees — also known as an application to proceed “in forma pauperis ” or “IFP.” Pl.’s Opp’n to Def.’s Mot. to Dismiss 3. It is well settled — and essentially conceded by the defendant — that the statutory filing period is tolled while such an application to proceed IFP is pending before the Court. See Def.’s Reply Mem. in Supp. of Mot. to Dismiss at 2; see, e.g., Ruiz, 763 F.Supp.2d at 172 (“[T]he filing of a complaint along with an IFP application ... tolls the ninety-day period of limitations contained in the right to sue letter during the Court’s review of the IFP application.”) (quotation omitted); Okereh v. Winter, 600 F.Supp.2d 139, 142 (D.D.C.2009) (finding that courts toll the statutory period in “extraordinary circumstances,” such as when a court is reviewing an IFP application); Amiri, 407 F.Supp.2d at 124 (same); Washington, 231 F.Supp.2d at 75 (same); Jarrett v. U.S. Sprint Communications Co., 22 F.3d 256, 259 (10th Cir.1994) (“Plainly, the statute of limitation is tolled while the IFP petition is pending.”). In an order issued by Judge Bates, the Court denied the plaintiffs IFP application on March 1, 2011 — five days after the plaintiff filed it. The defendant argues that the tolling of the plaintiffs 90-day time limit ended immediately upon the Court’s denial of the plaintiffs application. Def.’s Reply Mem. in Supp. of Mot. to Dismiss at 3. Thus, under the defendant’s view, the filing of the IFP application only served to toll the plaintiffs original deadline of March 5, 2011 until March 10, 2010 — i.e., for five days to correspond to the five-day pendency of the IFP application. Thus, the" }, { "docid": "11098533", "title": "", "text": "was not due to inaction or tardiness. Ynclan timely submitted his complaint to the district court clerk nine days prior to the expiration of the limitations period. The clerk did not stamp it “filed,” however, until three days after the limitations period had expired. The clerk delayed filing Ynclan’s complaint until the court resolved two pending motions, determining (1) that Ynclan was not entitled to court-appointed counsel, and (2) that he was entitled to proceed in forma pauperis (“IFP”). Only after the complaint had been formally filed were the summonses issued. This court has held, prior to Irwin, that a delay by the clerk in stamping a complaint “filed” due to the pendency of a motion to proceed IFP does not jeopardize the timeliness of the plaintiff’s commencement of suit. Hernandez v. Aldridge, 902 F.2d 386, 388 (5th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 962, 112 L.Ed.2d 1049 (1991); see also Martin v. Demma, 831 F.2d 69 (5th Cir.1987) (“Cleri cal delay in the formal filing of this in forma pauperis complaint should not affect the operative event, that is, the receipt of the complaint by the court.”); McClelland v. Herlitz, Inc., 704 F.Supp. 749, 751 (N.D.Tex.1989). Equity demands that this delay not prejudice the plaintiff in related respects. Since the Supreme Court has indicated that the thirty-day period prescribed in § 2000e-16(c) should be treated like any other statute of limitations, there exists no jurisdictional bar to equitable tolling in this case. The Supreme Court has addressed equitable tolling of the limitations period in the context of a Title VII suit against a private employer. The Court stated that when “a motion for appointment of counsel is pending equity would justify tolling the statutory period until the motion is acted upon.” Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725-26, 80 L.Ed.2d 196 (1984) (citing Harris v. Walgreen’s Distrib. Ctr., 456 F.2d 588 (6th Cir.1972)). Here, but for the delay due to the pendency of Ynclan’s motions for appointment of counsel and IFP status, the summonses would have been issued the day" }, { "docid": "18743411", "title": "", "text": "file a civil action within ninety days of receiving notification that the EEOC rendered its final decision. See 42 U.S.C. § 2000e-16(e), (d); Hornsby v. U.S. Postal Service, 787 F.2d 87, 89-90 (3d Cir.1986); Allen v. United States, 542 F.2d 176, 178-179 (3d Cir.1976). This ninety day filing period is in the nature of a statute of limitations, not a jurisdictional prerequisite, and is therefore subject to equitable tolling. Irwin v. Dept. of Veteran’s Affairs, 498 U.S. 89, 94-95, 111 S.Ct. 453, 456-57, 112 L.Ed.2d 435 (1990); Hornsby, 787 F.2d at 89 (citing Zipes v. Trans World Airlines, 455 U.S. 385, 392-98, 102 S.Ct. 1127, 1131-35, 71 L.Ed.2d 234 (1982)); Richardson v. Diagnostic Rehabilitation Ctr., 836 F.Supp. 252, 254 (E.D.Pa.1993). Defendant argues that because the motion to proceed in forma pauperis resulted in the filing of the complaint more than ninety days after plaintiff received notice of the final EEOC decision, the Title VII claims of plaintiff are time barred. This Court disagrees. In Richardson, the court faced a situation similar to the one in this case. The pro se plaintiff, employed by Diagnostic Rehabilitation Center (“DRC”), filed an appeal with the EEOC alleging racial discrimination in violation of Title VII. Richardson, 836 F.Supp. at 253. After receiving notice of the final EEOC decision, the plaintiff submitted his complaint, accompanied by a motion to proceed in forma pauperis, to the Clerk of the Court within the ninety day filing period. Id. at 253-54. The court denied the motion, but allowed the plaintiff additional time to pay the filing fee. Id. The plaintiff paid the filing fee within the time period allowed by the court, but resulted in the “filing” of the civil action outside the ninety day statutory period. Id. DRC argued that because the plaintiff failed to “file” within the ninety day period, the action in Richardson was time-barred. Id. at 253. The court reasoned, however, that the submission of the complaint within the ninety period, pending the outcome of the motion to proceed in forma pauperis, tolled the statute of limitations. Id. at 254. “A contrary holding would" }, { "docid": "15883046", "title": "", "text": "Office misplaced the papers. The Clerk’s jacket contains correspondence between plaintiff and the Clerk of Court. By letter of March 22, 2005, the Clerk, in responding to plaintiffs inquiry about his submissions, stated that her office “talked to the judge in the case and the original file date of your case will have no bearing on the case- — -whether it is file stamped September 2004 or January 2005.” The complaint was formally filed on January 31, 2005, when the Court granted plaintiffs motion to proceed in forma pauperis. Title VII litigants are “not responsible for the administrative delay associated with the Court’s review of petitions to proceed in forma pauper-is.... [T]he presentation of a complaint [and] a petition to proceed in forma pauperis tolls the ninety-day period of limitations ...” (citations omitted); accord Washington v. White, 231 F.Supp.2d 71, 75-76 (D.D.C.2002) (citing cases). Plaintiff timely submitted his complaint within 90 days of his presumed receipt of the right-to-sue notice. Defendant’s motion based on untimeliness therefore is denied. 2. The Merits of the Complaint Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge ... under this subchapter.” 42 U.S.C. § 2000e-3(a). “An activity is protected if it involves opposing alleged discriminatory treatment by the employer or participating in legal efforts against the alleged treatment.” Globus v. Skinner, 721 F.Supp. 329, 334 (D.D.C.1989) (citation omitted). To establish a prima facie case of retaliation, plaintiff must show that (1) he engaged in a statutorily protected activity; (2) the employer took an adverse personnel action; and (3) a causal connection existed between the two. Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1423 (D.C.Cir.1988); accord Cones v. Shalala, 199 F.3d 512, 521 (D.C.Cir.2000). The Court will first address whether plaintiff has shown an adverse personnel action. Plaintiff alleges that he was subjected to “retaliatory harassment” based on numerous acts, including his termination in March 2004. Amended Complaint at 3. Harassment standing" }, { "docid": "15620971", "title": "", "text": "presumptive three days allowed for receipt by mail, plaintiff filed her complaint on the one hundred and seventh day i.e. seventeen days after the days allowed.” Id. Review of the Court’s docket reveals that the Clerk of Court received plaintiffs complaint and application to proceed in forma pauperis on December 23, 2010, that the Court approved plaintiffs application to proceed in forma pauperis on January 5, 2011, and that the Clerk of Court officially filed these documents on January 10, 2011. Plaintiff is not responsible for the delay between the date the Clerk of Court received her complaint and the date on which the Clerk officially enters the complaint on the Court’s electronic docket. See Guillen v. Nat’l Grange, 955 F.Supp. 144, 145 (D.D.C.1997) (finding a Title VII litigant “not responsible for the administrative delay associated with the Court’s review of petitions to proceed in forma pawperis.... [T]he presentation of a complaint [and] a petition to proceed in forma pauperis tolls the ninety-day period of limitations____”) (citations omitted). Assuming that plaintiff received the right-to-sue notice on September 24, 2010, three days after its issuance, the last day on which she could submit her complaint to the Clerk of Court would have been ninety days later, on December 23, 2010. The Court concludes that plaintiffs complaint was timely filed. See Stone v. Landis Const. Corp., 733 F.Supp.2d 148, 151 (D.D.C.2010) (denying motion to dismiss Title VII and ADEA claims where the complaint was received five days before expiration of 90-day filing period calculated from the first date on which Clerk of Court received the complaint). B. Plaintiff Concedes Defendant’s Remaining Arguments Under Local Civil Rule 7(b), if a party fails to file a memorandum of points and authorities in opposition to a dispositive motion by the deadline set by the Court, “the Court may treat the motion as conceded.” LCvR 7(b). “[A]n argument in a dispositive motion that the opponent fails to address in an opposition may be deemed conceded.” Rosenblatt v. Fenty, 734 F.Supp.2d 21, 22 (D.D.C.2010) (citing Bonaccorsy v. District of Columbia, 685 F.Supp.2d 18, 24 (D.D.C.2010)) (other citations" }, { "docid": "14156253", "title": "", "text": "mailed.” (Dkt.# 4.) The presumption, therefore, is that plaintiff received the.decision by November 5, 2000. The ninetieth day from this presumptive date was February 3, 2001. The complaint was therefore technically filed 114 days after plaintiff is presumed to have received the decision, or 24 days beyond the statutory fifing deadline. The ninety day period is not a jurisdictional statute but rather is a statute of limitations and thus subject to equitable tolling. See Smith-Haynie v. District of Columbia, 155 F.3d 575 (D.C.Cir.1998); Truitt v. County of Wayne, 148 F.3d 644 (6th Cir.1998). There is a substantial body of case law holding that the ninety day period is tolled between the time a complaint and an application to proceed in forma pauperis are received by the Court, and the time the Court rules on the application. See, e.g., Warren v. Department of the Army, 867 F.2d 1156, 1160 (8th Cir.1989) (statute of limitations is equitably tolled between submission of application to proceed in forma pauperis and formal filing of complaint); Paulk v. Department of the Air Force, 830 F.2d 79, 82-83 (7th Cir.1987) (to bar an action that was submitted for fifing in forma pauperis within the statute of limitations but decided beyond the deadline would “violate equal protection because similar claims would be treated drastically differently only on the basis of the speed with which the court chose to process them”); Hogue v. Roach, 967 F.Supp. 7, 9 (D.D.C.1997); Guillen v. National Grange, 955 F.Supp. 144, 145 (D.D.C.1997); Harley v. Dalton, 896 F.Supp. 29 (D.D.C.1995); Yelverton v. Blue Bell, Inc., 530 F.Supp. 701 (E.D.N.C.1982); Abram v. Wackenhut Corp., 493 F.Supp. 1090 (E.D.Mich.1980). The cases defendant cites in support of his position that this case should be dismissed on statute of limitation grounds did not involve a delay caused by the Court’s administrative procedures. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (describing as a “garden variety claim of excusable neglect” the fact that the lawyer was absent from his office when the decision was received); Baldwin County Welcome Center" }, { "docid": "1424321", "title": "", "text": "filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires.” Id. at 392-98, 102 S.Ct. at 1131— 35; accord Jones v. Madison Service Corp., 744 F.2d 1309, 1314 (7th Cir.1984); Anooya v. Hilton Hotels Corp., 733 F.2d 48, 49 (7th Cir.1984). The Seventh Circuit, in Brown v. J.I. Case Co., 756 F.2d 48 (7th Cir.1985), found that equity required the tolling of the 90-day period while a court considered a plaintiff’s application for appointment of counsel. The plaintiff in Brown filed his application for court-appointed counsel along with a copy of his right-to-sue letter with the trial court during the 90-day period. The Seventh Circuit, in calling for equitable tolling, stated: The remedial purpose of Title VII and the special equitable circumstances raised by a request for appointment of counsel justify a general rule allowing a request for appointed counsel combined with presentation of a Notice of Right to Sue to toll the running of the ninety-day period until the court acts upon the counsel request. Id. at 50. Although the plaintiff here filed an application to proceed in forma pauperis, and not a request for court-appointed counsel, the court finds that the same equitable considerations warrant a tolling of the filing period in this case. See Paulk v. Department of the Air Force, 830 F.2d 79, 83, (7th Cir.1987); see also Coulibaly v. T.G.I. Friday’s, Inc., 623 F.Supp. 860, 861, 863 n. 2 (S.D.Ind.1985) (reaching the same conclusion relying on Harris v. National Tea Company, 454 F.2d 307 (7th Cir.1971) and Brown, 756 F.2d 48). However, the Brown court expressly held that in order to toll the running of the filing period under Title VII, the plaintiff’s application for appointment of counsel must be “combined with presentation of a Notice of Right to Sue.” Id. In the present case, plaintiff Gardner filed only an application to proceed in forma pauperis during the 90-day period; he did not include a copy of his right-to-sue letter. Thus, it is not clear that Gardner is entitled to the special tolling rule as set" }, { "docid": "14156252", "title": "", "text": "Defendant’s Motion to Dismiss (“Def.’s Mot.”), Exhibit (“Ex.”) F. Plaintiff submitted his complaint to this Court on January 30, 2001, with a petition for leave to proceed in forma pauperis. The Court’s copies of these documents bear a stamp showing that they were received by the Clerk on January 30, 2001. (Dkt. ## 1, 2). The Clerk of the Court will not accept for filing a complaint that is not accompanied by a fifing fee until after the Court has granted a petition for leave to proceed in forma pauperis. The application to proceed in forma pauperis was granted on February 26, 2001, and the complaint was then accepted by the Clerk as filed the next day (February 27, 2001). As indicated, plaintiff had ninety days from the date he received the final decision of the EEOC to file suit in this Court. The certificate of mailing attached to the EEOC’s denial of request for reconsideration states that “the Commission will presume that [its] decision was received within five (5) calendar days after it was mailed.” (Dkt.# 4.) The presumption, therefore, is that plaintiff received the.decision by November 5, 2000. The ninetieth day from this presumptive date was February 3, 2001. The complaint was therefore technically filed 114 days after plaintiff is presumed to have received the decision, or 24 days beyond the statutory fifing deadline. The ninety day period is not a jurisdictional statute but rather is a statute of limitations and thus subject to equitable tolling. See Smith-Haynie v. District of Columbia, 155 F.3d 575 (D.C.Cir.1998); Truitt v. County of Wayne, 148 F.3d 644 (6th Cir.1998). There is a substantial body of case law holding that the ninety day period is tolled between the time a complaint and an application to proceed in forma pauperis are received by the Court, and the time the Court rules on the application. See, e.g., Warren v. Department of the Army, 867 F.2d 1156, 1160 (8th Cir.1989) (statute of limitations is equitably tolled between submission of application to proceed in forma pauperis and formal filing of complaint); Paulk v. Department of the" }, { "docid": "15620970", "title": "", "text": "relevant part, the ADEA provides: If a charge filed with the [EEOC] ... is dismissed or the proceedings of the [EEOC] are otherwise terminated by the [EEOC], the [EEOC] shall notify the person aggrieved. A civil action may be brought under this section by a person ... against the respondent named in the charge within 90 days after the date of the receipt of such notice. 29 U.S.C. § 626(e) (emphasis added). It is generally presumed that a person receives her copy of the EEOC’s notice within three days of its issuance. See Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (applying the presumptive three-day allowance set forth in Fed.R.Civ.P. 6(e) for receipt of filings by mail); Coleman v. Potomac Elec. Power Co., 310 F.Supp.2d 154, 158 (D.D.C.2004). Defendant moves to dismiss the complaint on the ground that it is untimely. See Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem.”) at 3. According to defendant, “[a]fter applying the presumptive three days allowed for receipt by mail, plaintiff filed her complaint on the one hundred and seventh day i.e. seventeen days after the days allowed.” Id. Review of the Court’s docket reveals that the Clerk of Court received plaintiffs complaint and application to proceed in forma pauperis on December 23, 2010, that the Court approved plaintiffs application to proceed in forma pauperis on January 5, 2011, and that the Clerk of Court officially filed these documents on January 10, 2011. Plaintiff is not responsible for the delay between the date the Clerk of Court received her complaint and the date on which the Clerk officially enters the complaint on the Court’s electronic docket. See Guillen v. Nat’l Grange, 955 F.Supp. 144, 145 (D.D.C.1997) (finding a Title VII litigant “not responsible for the administrative delay associated with the Court’s review of petitions to proceed in forma pawperis.... [T]he presentation of a complaint [and] a petition to proceed in forma pauperis tolls the ninety-day period of limitations____”) (citations omitted). Assuming that plaintiff received the right-to-sue notice" }, { "docid": "1424323", "title": "", "text": "out by the Brown decision. The court does not need to decide if the failure to include a copy of the right-to-sue letter should bar the application of the Brown-tolling doctrine in this case, for even if the 90-day filing period were tolled for the five days it took the court to rule on his pauper application, Gardner’s complaint would still come 134 days too late. Gardner’s right-to-sue letter was issued September 30, 1986 which put his original 90-day deadline at December 9, 1986; adding five days for the time it took the court to deny Gardner’s in forma pauperis application extends his deadline to December 14, 1986; he did not actually file his complaint until April 27, 1987, 134 days after his extended deadline. By any reading of the tolling doctrine in Brown, Gardner’s complaint was not timely. In response, Gardner seeks equitable tolling on two alternative grounds. First, Gardner argues that his poor finan cial situation warrants equitable tolling in order to make his April 27, 1987 filing timely. As USX correctly points out, any argument regarding Gardner’s financial wherewithal to pay the $120-filing fee was foreclosed when this court denied his in forma pauperis application on November 3, 1986. Gardner did not ask for reconsideration of the court’s order nor did he reapply with a new affidavit, as required under 28 U.S.C. § 1915(a), within the 90-day filing period. Thus, the court refuses to toll the running of the filing period based on plaintiff’s financial status. Second, Gardner contends that the Clerk’s letter informing him that the court denied his pauper application actually misled him into believing that all he needed to do was pay the $120 filing fee; that is, that he was no longer required to file within the 90-day period. The court disagrees. The Clerk’s letter of November 3, 1986 reads as follows: Dear Mr. Gardner: Your request to file your cause of action In Forma Pauperis has been DENIED, as per copy of the enclosed Order. Your Petition has been assigned Miscellaneous Number HM 86-63. If you wish to proceed with this action," }, { "docid": "11108340", "title": "", "text": "Distribution Center, 456 F.2d 588 (6th Cir.1972). In Harris, plaintiff received notice of his right to sue on January 8, 1971. On January 26, 1971, plaintiff requested the district court to appoint him counsel, but the district court denied this request on the same day. Subsequently, and after more than thirty days of the issuance of the right to sue letter, plaintiff again requested the court to appoint counsel. The district court dismissed this second petition because it was filed after the passing of the thirty-day deadline. On review, this court held that the district court’s dismissal of plaintiffs second request for counsel was in error. The court concluded that “There is conflict between the legislative intent to provide counsel where necessary to justice and the requirement that the complaint be filed within 30 days after the EEOC notice of right to sue.” Id. at 591. The court went on to apply the equitable tolling doctrine to the case. Id. at 592. Although Harris was not construing the thirty-day requirement of § 7703(b)(2), it nonetheless provides us guidance here in that it illustrates the possibility that “the filing, processing and decision of [a] motion ... could consume the entire 30-day period.” Id. at 591. In fact, the court stated that ‘When the plaintiff made application for an appointed attorney, it was manifestly an act designed to facilitate the filing of a formal complaint. It was, moreover, the sole act over which she had any effective control.’ Id. (quoting McQueen v. E.M.C. Plastic Co., 302 F.Supp. 881, 884 (E.D.Tex.1969)). In our view, Harris alone is support enough to reverse the district court. This case is very much akin to Martin v. Demma, 831 F.2d 69 (5th Cir.1987). In Martin, plaintiffs filed a complaint under 42 U.S.C. § 1983, along with a request to proceed in forma pauperis, within the one-year statutory period. However, the clerk did not stamp and enter the complaint until the magistrate approved the in forma pau-peris application, which was after the one-year statutory period. The Fifth Circuit Court of Appeals stated that Since their applications required court" }, { "docid": "11098532", "title": "", "text": "plaintiff to amend his complaint, but on reconsideration in light of Schiavone, dismissed the suit for lack of subject matter jurisdiction. Id. at 394 (citing Schiavone). We affirmed the dismissal, holding that in order for an amendment adding a party in a Title VII suit to relate back to the original date of filing, the added party must have had notice within the statutory period. This determination was based on Schiavone’s interpretation of Rule 15(c). See 477 U.S. at 29, 106 S.Ct. at 2384. D. Application to This Case Here, the district court relied on the rule in Gonzales, finding that the court lacked subject matter jurisdiction to permit Ynclan to amend his complaint, since none of the defendants had been served prior to the expiration of the limitations period. Although the district court did not consider in its order the issue of equitable tolling, the judge’s comments at the hearing indicate he was well aware of this circuit’s previously settled case law in this area. The delay in serving process in this case, however, was not due to inaction or tardiness. Ynclan timely submitted his complaint to the district court clerk nine days prior to the expiration of the limitations period. The clerk did not stamp it “filed,” however, until three days after the limitations period had expired. The clerk delayed filing Ynclan’s complaint until the court resolved two pending motions, determining (1) that Ynclan was not entitled to court-appointed counsel, and (2) that he was entitled to proceed in forma pauperis (“IFP”). Only after the complaint had been formally filed were the summonses issued. This court has held, prior to Irwin, that a delay by the clerk in stamping a complaint “filed” due to the pendency of a motion to proceed IFP does not jeopardize the timeliness of the plaintiff’s commencement of suit. Hernandez v. Aldridge, 902 F.2d 386, 388 (5th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 962, 112 L.Ed.2d 1049 (1991); see also Martin v. Demma, 831 F.2d 69 (5th Cir.1987) (“Cleri cal delay in the formal filing of this in forma pauperis complaint should" }, { "docid": "1424324", "title": "", "text": "out, any argument regarding Gardner’s financial wherewithal to pay the $120-filing fee was foreclosed when this court denied his in forma pauperis application on November 3, 1986. Gardner did not ask for reconsideration of the court’s order nor did he reapply with a new affidavit, as required under 28 U.S.C. § 1915(a), within the 90-day filing period. Thus, the court refuses to toll the running of the filing period based on plaintiff’s financial status. Second, Gardner contends that the Clerk’s letter informing him that the court denied his pauper application actually misled him into believing that all he needed to do was pay the $120 filing fee; that is, that he was no longer required to file within the 90-day period. The court disagrees. The Clerk’s letter of November 3, 1986 reads as follows: Dear Mr. Gardner: Your request to file your cause of action In Forma Pauperis has been DENIED, as per copy of the enclosed Order. Your Petition has been assigned Miscellaneous Number HM 86-63. If you wish to proceed with this action, a fee of $120.00 will have to be paid. Upon receipt of the $120.00 your action will be given a civil number. If you have any further correspondence regarding this matter, please refer to your Miscellaneous number. Gardner argues that the Clerk’s statement informing him that his petition had been assigned a miscellaneous number led him to believe that he had satisfied the 90-day filing requirement. In support of his argument, Gardner relies on Carlile v. South Routt School District Re 3-J, 652 F.2d 981 (10th Cir.1981). In Carlile, the plaintiff filed an application to proceed in forma pauperis within the 90-day filing period but failed to file her complaint until 141 days after receiving her right-to-sue letter. Upon receipt of the plaintiff’s motion for pauper status, the trial court issued an order granting plaintiff’s motion and stating “That this action shall be deemed commenced upon filing of the aforesaid Motion.” Id. at 983. Plaintiff’s attorney, in reliance upon the court’s statement, filed plaintiff’s complaint outside the original 90-day period. Id. On appeal, the Tenth" }, { "docid": "18606501", "title": "", "text": "Army, 845 F.2d 1051, 1053 (D.C.Cir.1988); Williams v. Army & Air Force Exch. Serv., 830 F.2d 27, 29-30 (3d Cir.1987); Paulk v. Department of the Air Force, Chanute Air Force Base, 830 F.2d 79, 81 (7th Cir.1987); Gonzales v. Secretary of the Air Force, 824 F.2d 392, 394 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1245, 99 L.Ed.2d 443 (1988); Hymen v. Merit Sys. Protection Bd., 799 F.2d 1421, 1422 (9th Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987). Both Mondy and Paulk held that grounds existed for equitable tolling, and the plaintiffs in those cases therefore were allowed to amend their complaints. Mondy, 845 F.2d at 1054, 1057 (limitations period tolled during \"marshal’s delay” of service; court speaks only of 30-day \"deadline\" and never mentions rule 4(j)’s 120-day service period); Paulk, 830 F.2d at 83 (limitations period tolled during pendency of in forma pauperis motion). McKAY, Circuit Judge, dissenting: The majority reads Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), as dictating a broader principle than the Supreme Court, in fact, articulated. This reading has led to what I consider to be an erroneous analysis and result in this case. I. On December 30, 1983, the U.S. Postal Service discharged Mr. Johnson from his position as a mail handler at the Denver Bulk Mail Center. Mr. Johnson pursued administrative review of his dismissal for approximately eighteen months, first with the Merit System Protection Board and later with the Equal Employment Opportunity Commission (“EEOC”). In both fora the U.S. Postal Service participated as the adversary party. On July 13, 1985, Mr. Johnson received a final decision (“right-to-sue”) letter from the EEOC notifying him that he had thirty days from receipt of the letter to file a civil action in federal district court. Five days after receiving the “right-to-sue” letter Mr. Johnson petitioned the district court for permission to proceed in forma pauperis and requested appointment of counsel. Four days later, on July 22, the court denied Mr. Johnson’s motion for appointment of counsel but granted the motion to" }, { "docid": "18743410", "title": "", "text": "595, 30 L.Ed.2d 652 (1972). Plaintiff neglected to file a response to the instant motion within the time period prescribed by Local Rule 20(c). In light of plaintiffs pro se status, the Court granted her an additional 30 days to respond to the motion, and notified her that failure to do so would result in this Court considering the motion uncontested. Once again, plaintiff failed to respond to defendant’s motion. Nevertheless, this Court has undertaken a searching examination of the record, including the entire EEOC investigative file submitted by plaintiff, to determine whether summary judgment is appropriate at this time. C. Failure to File Within the Statutory Time Period Subsection 5(f)(1) of Title VII, applicable to non-federal employees, requires that a civil action be brought within ninety days of a plaintiff receiving notification of the EEOC’s final decision and a “right to sue letter.” 42 U.S.C. § 2000e-5(f)(l); Mosel v. Hills Department Store, Inc., 789 F.2d 251, 252-53 (3d Cir.1986). Similarly, subsection 16(c) of Title VII, applicable to federal employees, requires that an aggrieved party file a civil action within ninety days of receiving notification that the EEOC rendered its final decision. See 42 U.S.C. § 2000e-16(e), (d); Hornsby v. U.S. Postal Service, 787 F.2d 87, 89-90 (3d Cir.1986); Allen v. United States, 542 F.2d 176, 178-179 (3d Cir.1976). This ninety day filing period is in the nature of a statute of limitations, not a jurisdictional prerequisite, and is therefore subject to equitable tolling. Irwin v. Dept. of Veteran’s Affairs, 498 U.S. 89, 94-95, 111 S.Ct. 453, 456-57, 112 L.Ed.2d 435 (1990); Hornsby, 787 F.2d at 89 (citing Zipes v. Trans World Airlines, 455 U.S. 385, 392-98, 102 S.Ct. 1127, 1131-35, 71 L.Ed.2d 234 (1982)); Richardson v. Diagnostic Rehabilitation Ctr., 836 F.Supp. 252, 254 (E.D.Pa.1993). Defendant argues that because the motion to proceed in forma pauperis resulted in the filing of the complaint more than ninety days after plaintiff received notice of the final EEOC decision, the Title VII claims of plaintiff are time barred. This Court disagrees. In Richardson, the court faced a situation similar to the one in" } ]

[ { "docid": "12089839", "title": "", "text": "the assignment of a letter grade is symbolic communication intended to send a specific message to the student, the individual professor’s communicative act is entitled to some measure of First Amendment protection. Cf. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 735-36, 21 L.Ed.2d 731 (1969) (holding that students’ action, wearing black armbands, was expressive conduct entitled to First Amendment protection); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966) (concluding that a sit-in by black students was symbolic speech); Monroe v. State Ct. of Fulton Cty., 739 F.2d 568, 561 (11th Cir.1984) (“If [plaintiff] shows ‘[a]n intent to convey [a] particularized message ... and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it,’ the activity falls within the scope of the first and four teenth amendments.” (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730-31, 41 L.Ed.2d 842 (1974))). The freedom of the university professor to assign grades according to his own professional judgment is of substantial importance to that professor. To effectively teach her students, the professor must initially evaluate their relative skills, abilities, and knowledge. The professor must then determine whether students have absorbed the course material; whether a new, more advanced topic should be introduced; or whether a review of the previous material must be undertaken. Thus, the professor’s evaluation of her students and assignment of their grades is central to the professor’s teaching method. The professor’s authority over grading was addressed by the Supreme Court in Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). The Court stated that “[l]ike the decision of an individual professor as to the proper grade for a student in his course, the determination of whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.” Id. at 90, 98 S.Ct. at 955. The court" } ]

[ { "docid": "15575978", "title": "", "text": "a particularized message ... and in the surrounding circumstances the likelihood. [must be] great that the message would be understood by those who viewed it.” Id. at 410-11, 418 U.S. at 2730. Thus, in deciding whether conduct is expressive, we must look to the nature of the activity in conjunction with the factual context and environment in which it is undertaken. The significance for First Amendment purposes of the viewer’s perception is readily apparent in the holdings of the Court that protected expressive conduct includes wearing a black arm band to protest the Vietnam war, Tinker, 393 U.S. at 505-06, 89 S.Ct. at 735-36; burning a draft card to protest the war, United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); demonstrating on the grounds of a state capítol, Edwards v. South Carolina, 372 U.S. 229, 235-36, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963); a civil rights march, Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969); leafletting, Schneider v. Town of Irvington, 308 U.S. 147, 160-61, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939); and labor picketing, Thornhill v. Alabama, 310 U.S. 88, 102-03, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940). See also Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966) (plurality opinion) (sit-in by blacks in a “white-only” library to protest segregation). However, while acknowledging that the First Amendment protects more than “pure” speech, the Supreme Court has also consistently rejected the view that “an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” See O’Brien, 391 U.S. at 376, 88 S.Ct. at 1678. More recently in City of Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989), the Court held that dance-hall patrons coming together to engage in recreational dancing were not engaged in “expressive associa tion” protected by the First Amendment. The Court stated, it is possible to find some kernel of expression in almost" }, { "docid": "11010138", "title": "", "text": "L.Ed.2d 842 (1974) (taping black peace symbols to United States flag in 1970 expressed political criticisms that viewers understood); Tinker v. Des Moines Indep. Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) (wearing armbands to protest Vietnam War is protected “symbolic act”). The question of the protected status of speech is one of law, and as such, we review the issue de novo. Stewart v. Parish of Jefferson, 951 F.2d 681, 683 (5th Cir.1992); Kirkland v. Northside I.S.D., 890 F.2d 794, 797 (5th Cir.1989), cert. denied, 496 U.S. 926, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990). In considering Cabrol’s conduct, we keep in mind the Supreme Court’s rejection in United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), of “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in conduct intends thereby to express an idea.” See also City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989) (“possible to find kernel of expression in almost every activity a person undertakes ... but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”); New Orleans S.S. Ass’n v. General Longshore Workers, 626 F.2d 455, 462 n. 5 (5th Cir.1980) (noting that all communication involves conduct), aff'd sub nom. Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S. 702, 102 S.Ct. 2672, 73 L.Ed.2d 327 (1982). For activities to constitute expressive conduct and fall within the scope of the First Amendment, they must be “sufficiently imbued with elements of communication.” Spence, 418 U.S. at 409, 94 S.Ct. at 2730.. In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we ask whether an intent to convey a particularized message was present and whether the likelihood was great that the message would be understood by those who viewed it. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989); United States v. Hayward, 6" }, { "docid": "11747421", "title": "", "text": "1249 (quoting Black's Law Dictionary 21 [6th ed.1990]) (majority opinion and Levine, J., concurring). . To determine whether conduct is imbued with such elements of communication, the Supreme Court has asked whether an intent to convey a particular message was present and whether there was a great likelihood that the message would be understood by the viewer or listener. Id. (citing Spence, 418 U.S. at 410-11, 94 S.Ct. 2727). Thus, as set forth in Johnson, the Court has recognized the expressive nature of the wearing of black armbands in protest of the Vietnam war, Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); a sit-in by blacks in a whites-only area to protest segregation, Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); the wearing of U.S. military uniforms in a dramatic presentation critical of U.S. involvement in Vietnam, Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); and picketing for a variety of causes, Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 313-14, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). . Were the Court to reach this question, the Court would hold that the photographs were not entitled to the protection of the First Amendment. When Montefusco was asked at his deposition what, if any, intentions he had with respect to the photographs at issue, he testified that \"most of them would be thrown out.” Karson Aff., Exh. L, at 28. In his affidavit, Montefusco states that photography is simply a hobby. J. Montefusco Aff., ¶ 6. He slates that he takes many photographs in the hope of capturing something of historical or topical value so that he can bring it into his classroom for discussion purposes. Id., ¶ 9. According to Montefusco, the subject photos are \"candid shots from two pool parties ... a prom gathering, and passerby of (his) house.” Id., ¶ 8. While Montefusco states that it has been" }, { "docid": "18940192", "title": "", "text": "Fourteenth Amendments.” Johnson, 491 U.S. at 404, 109 5.Ct. 2533; see also Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir.1999) (“Non-verbal conduct implicates the First Amendment when it is intended to convey a ‘particularized message’ and the likelihood is great that the message would be so understood.” (quoting Johnson, 491 U.S. at 404, 109 S.Ct. 2533)). For instance, “the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment” and is “closely akin to ‘pure speech.’” Tinker v. Des Moines Indep. Cmty. Sch. Disk, 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Similarly, the Court has “recognized the expressive nature of ... a sit-in by blacks in a ‘whites only’ area to protest segregation,” Johnson, 491 U.S. at 404,109 S.Ct. 2533 (citing Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966)), and “of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam,” id. (citing Schacht, 398 U.S. 58, 90 S.Ct. 1555). While the Court has rejected the notion that “an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” O’Brien, 391 U.S. at 376, 88 S.Ct. 1673, there is no doubt that the use of recognized symbols, such as emblems or flags, constitutes symbolic speech, Johnson, 491 U.S. at 404, 109 S.Ct. 2533. “The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind,” and “a primitive but effective way of communicating ideas.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); see also Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061 (9th Cir.2010) (“Tattoos are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection.”). In this context, the" }, { "docid": "23385670", "title": "", "text": "Amendment into play, we [must] ask[ ] whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’ ” When assessing the appellants’ claim, we look to the particular activity, combined with the factual context and environment in which it was undertaken. 240 F.3d at 440 (quoting Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989))(alteration in original) (citations omitted). Unfortunately, the majority, as did the Canady court, fails to adequately apply Spence to determine whether a school uniform specifically, as opposed to clothing generally, can constitute expression. Instead, as was done in Canady, the majority assumes for purposes of this appeal that the wearing of the uniform- at issue constitutes expressive conduct. Appellants (collectively, Students) assert that, for cases of coerced speech, the two-part Spence test was abrogated by Hurley v. Irish-Am. Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (holding Massachusetts public accommodation law unconstitutional as applied to require private organizers of St. Patrick’s Day parade to include gay, lesbian, and bisexual group as its own parade unit). They rely on the Court’s statement that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jab-berwoeky verse of Lewis Carroll”. Id. at 569, 115 S.Ct. 2338 (citation omitted). Of course, where speech is pure, a particularized message has never been required; pure speech is entitled to “comprehensive protection under the First Amendment”. Tinker v. Des Moines Indep. Com. Sch. Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The Spence test, on the other hand, was established to address speech that is less than pure: namely, “expression of an idea through activity”. Spence, 418 U.S. at 411, 94 S.Ct. 2727. That wearing a school uniform is not pure speech is supported by Tinker, which involved students being suspended for" }, { "docid": "11378634", "title": "", "text": "are being scrutinized, and that they may not act with impunity outside the watchful eyes of their constituents. In fact, the closing of the gallery of the house chamber, the very seat of political power in the Commonwealth, is surely of more moment in the first amendment context than restriction on the availability of a theater for the portrayal of entertainment or satire, even if political in nature. That plaintiffs members would be engaging in protected communicative activity is clear. One need not speak to make a point. See Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1966) (silent vigil in segregated library protected “speech”); Community for Creative Non-Violence v. Watt, 703 F.2d 586, 592 (D.C.Cir.1983), rev’d on other grounds, Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (sleeping in tents in Lafayette Park is expressive activity). While simply attending the speech and making themselves known through their presence is itself communicative in nature, the ACT-UP members message could go beyond that. According to testimony at the hearing, most of the members who were barred access to the gallery were dressed in colorful garb with the words “ACT-UP” clearly written on the front. Baker Testimony at 49. Thus, they would make their presence known not only as citizens in attendance, but also as members of ACT-UP who would particularly be scrutinizing the Commonwealth’s response to the AIDS crisis. The wearing of T-shirts and other apparel, even if only symbolic in nature, has been held to be protected speech under the first amendment. See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 512-513, 89 S.Ct. 733, 739-740, 21 L.Ed.2d 731 (1969) (students wearing armbands as a protest to Vietnam war was protected speech). The court holds that the gallery is a limited public forum, that plaintiffs members were denied the ability to engage in protected speech, and, as a result, access may be restricted only by reasonable time, place and manner regulations or in order to protect a compelling governmental interest by the narrowest" }, { "docid": "23137320", "title": "", "text": "of Needletrades, 322 F.3d 602, 610 (9th Cir.2003)). “The underlying substantive law governing the claims determines whether or not [the disputed fact] is material.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). “There must be enough doubt for a ‘reasonable trier of fact’ to find for the plaintiffs in order to defeat the summary judgment motion.” Id. (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)). III. Discussion A. First Amendment Retaliation Claim Although the students’ walkout was ostensibly to protest immigration reform legislation, there is no evidence that the students gave speeches, that they discussed matters of immigration reform, or that they carried placards or signs that conveyed their messages during the walk-out. Rather, the evidence reveals that the students left their school to engage in a protest march, met up with like-minded individuals from a local high school, and walked together to a third school. In the absence of any identifiable speech, these activities, if they are to be protected by the First Amendment, must fall within the definition of expressive conduct. The First Amendment protects conduct that is not speech but is nevertheless expressive in nature. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing of black armband to protest Vietnam War); United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (flag-burning). However, First Amendment protection does not apply to all cases in which someone intends to convey a message by his or her conduct; rather, First Amendment protection applies only when “it is intended to convey a ‘particularized message’ and the likelihood is great that the message would be so understood.” Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir.1999) (citing Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)). Here, the record is clear that the students intended to show their opposition to the proposed immigration reform by participating in a walkout. The record is less clear as to whether the walkout was likely to be perceived" }, { "docid": "23385671", "title": "", "text": "law unconstitutional as applied to require private organizers of St. Patrick’s Day parade to include gay, lesbian, and bisexual group as its own parade unit). They rely on the Court’s statement that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jab-berwoeky verse of Lewis Carroll”. Id. at 569, 115 S.Ct. 2338 (citation omitted). Of course, where speech is pure, a particularized message has never been required; pure speech is entitled to “comprehensive protection under the First Amendment”. Tinker v. Des Moines Indep. Com. Sch. Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The Spence test, on the other hand, was established to address speech that is less than pure: namely, “expression of an idea through activity”. Spence, 418 U.S. at 411, 94 S.Ct. 2727. That wearing a school uniform is not pure speech is supported by Tinker, which involved students being suspended for wearing black armbands to school to protest the conflict in Vietnam. In distinguishing the armband-suspension from other clothing-related regulations, the Court explained: “The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment.... Our problem involves direct, primary First Amendment rights akin to ‘pure speech’”. Tinker, 393 U.S. at 507-08, 89 S.Ct. 733. Accordingly, for determining what — if any — expressive content there is in wearing the school uniform at issue, we must follow Canady’s instruction and engage in the two-part Spence analysis. While the Students have proffered some evidence that the Forney Independent School District (FISD) intended to convey a message in adopting the uniform policy — namely, pride in and respect for the values of FISD and its schools — I question whether such a message is sufficiently particularized as to satisfy Spence. But, even if FISD did intend that message, I doubt there is any likelihood whatsoever, no less the “great likelihood” required by Spence," }, { "docid": "22446988", "title": "", "text": "view of the reach of the First Amendment is more restricted than the jurisprudence warrants. The First Amendment shields more than political speech and verbal expression; its protections extend to entertainment, Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948); film, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 780-81, 96 L.Ed. 1098 (1952); theater, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); music, without regard to words, Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); peaceful marches to express grievances to governmental authorities, Gregory v. Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 947, 22 L.Ed.2d 134 (1969), Shuttlesworth v. Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969); sitins by blacks to protest racial discrimination, Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966); the wearing of black arm bands to evidence disapproval of our involvement in Vietnam, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 735, 21 L.Ed.2d 731 (1969); the refusal to salute the flag as part of a regularized school activity, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 1182, 87 L.Ed. 1628 (1943); and most recently, parades with or without banners or written messages, Hurley, — U.S. at -, 115 S.Ct. at 2345. “[T]he Constitution looks beyond written or spoken words as mediums of expression.” Hurley, — U.S. at -, 115 S.Ct. at 2345. If the First Amendment reached only “expressions conveying a ‘particularized message,’ ” its “protection would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll.” Id. at -, 115 S.Ct. at 2345 (quoting from Spence v. Washington, 418 U.S. 405, 411, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (per curiam)). The First Amendment has surely been valued as essential to the preservation of a political democracy in this country;" }, { "docid": "12907319", "title": "", "text": "written word. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S.Ct. 2727, 2729-31, 41 L.Ed.2d 842 (1974) (per curiam) (display of flag with peace symbol attached was expressive conduct entitled to protection under First Amendment); Tinker, 393 U.S. at 505, 89 S.Ct. at 736 (wearing black armband was conduct akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1966) (sit-in by black students in “whites only” library was symbolic speech); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633-34, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117 (1931) (display of red flag is expressive conduct). However, not every form of conduct is protected by the First Amendment right of free speech. To determine whether [plaintiffs] conduct is entitled to first amendment protection, “the nature of [plaintiffs] activity, combined with the factual context and environment in which it was undertaken” must be considered. Spence v. Washington, 418 U.S. 405, 409-10, 94 S.Ct. 2727, 2729-30, 41 L.Ed.2d 842 (1974). If [plaintiff] shows “[a]n intent to convey a particularized message ... and in the sur rounding circumstances the likelihood was great that the message would be understood by those who viewed it,” id. at 410-11, 94 S.Ct. at 2730-31, the activity falls within the scope of the first and fourteenth amendments. Monroe v. State Court of Fulton County, 739 F.2d 568, 571 (11th Cir.1984). Cf. Jarman v. Williams, 753 F.2d 76, 77-78 (8th Cir.1985) (nonexpressive dancing constitutes conduct not entitled to protection of the First Amendment). In the present case, it is undisputed that Fowler did not see the movie before she had it shown to her class on the morning of May 31, 1984, a noninstructional day. Fowler agreed to allow the movie to be shown, at the students’ request, because May 31 was “their treat type" }, { "docid": "12907340", "title": "", "text": "the message would be understood by those who viewed it,” id., at 411, 94 S.Ct. 2730, because Fowler did not explain the messages contained in the film to the students. I would suggest that the rationale underlying Spence v. Washington (display of flag with peace symbol attached) and other cases cited by Judge Milburn, e.g., Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (sit-in by blacks at “whites only” library), West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (flag salute), are inappo-site because they involve examples of symbolic expression, not verbal communication, and articulate guidelines for determining what symbolic acts may constitute expression. These cases do not lend themselves to the reverse purpose of defining what kind of communication can not be expressive. This court, in my opinion, should not offer an advisory opinion as to what constitutes an intent to communicate and how much knowledge of the content of a presentation is needed before it can be embraced as one’s own expression. The more important question is not the motive of the speaker so much as the purpose of the interference. I would also question the notion that an explanation from the teacher was necessary before the class was likely to understand the themes and viewpoints contained in this film. The Supreme Court in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), has acknowledged that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” I believe a teacher should be similarly protected by the First Amendment whether she is participating in an instructional or non-instructional day. See, e.g., Mt. Healthy City School Dist. Bd. of Educ., supra (finding a teacher’s communication with a radio station regarding school board policies was constitutionally protected activity); Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) (holding that a conversation by a teacher and principal in the principal’s" }, { "docid": "23512724", "title": "", "text": "explicitly held to be unlawful prior to the time the official acted; rather, “in light of the preexisting law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. at 3039. See also People of Three Mile Island v. Nuclear Regulatory Comm’rs., 747 F.2d 139, 144 (3d Cir.1984) (“Although officials need not ‘predie[t] the future course of constitutional law’ ... they are required to relate established law to analogous factual settings.”) (citations omitted); Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.1988) (en banc); Eastwood v. Dep’t. of Corrections, 846 F.2d 627, 630 (10th Cir.1988); Lappe v. Loeffelholz, 815 F.2d 1173, 1177 (8th Cir.1987). Using this standard, we must determine whether, under Stewart’s version of the facts, the defendants in this case reasonably could have believed that discharging Stewart was lawful in light of the clearly established law. An initial issue we must address in this case is whether it was clear at the time of Stewart’s discharge that his conduct in walking out of the meeting amounted to protected speech. The law at the time of the discharge clearly established that certain forms of conduct are considered speech and are protected by the First Amendment. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-94, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984) (assuming that overnight camping in a public park in connection with a demonstration in support of the homeless was expressive conduct protected by the First Amendment); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981) (nude dancing is constitutionally protected expression); Tinker v. Des Moines School District, 393 U.S. 503, 505-06, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) (wearing black armbands in school is akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966) (sit-in by blacks in a “whites only” area to protest segregation was expression protected by First Amendment); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632-33, 63 S.Ct. 1178, 1182, 87 L.Ed. 1628 (1943)" }, { "docid": "12275455", "title": "", "text": "seem a bold assertion is a commentary upon how far judicial and scholarly discussion of this basic constitutional guarantee has strayed from common and common-sense understanding.” Community for Creative Non-Violence v. Watt, 703 F.2d 586, 622 (D.C.Cir.1983) (rejecting the notion that sleeping in public parks is expressive conduct about the plight of the homeless) (Scalia, J., dissenting), rev’d sub nom. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Here, what common sense beckons the law ordains. In determining “whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play,” the Supreme Court asks “whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’ ” Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (quoted in Texas v. Johnson, 109 S.Ct. at 2539) (emphasis added). For example, the Supreme Court has recognized the “expressive nature” in the burning of a United States flag by a protestor during a political march at the Republican National Convention, Texas v. Johnson, 109 S.Ct. at 2540, in the wearing of black arm-bands, by school students on particular days in protest of the Vietnam War, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 735, 21 L.Ed.2d 731 (1969), in the peaceful picketing by union members of a supermarket in a large shopping center to protest unfair labor practices, Amalgamated Food Employees Union Local 509 v. Logan Valley Plaza, Inc., 391 U.S. 308, 313-14, 88 S.Ct. 1601, 1605-06, 20 L.Ed.2d 603 (1968), and in conducting a silent sit-in by black persons against a library’s segregation policy, Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966). We note that in all of these cases there was little doubt from the circumstances of the conduct that it formed a clear and particularized political or social message very much understood by those who viewed it. More than one constitutional scholar has commented that" }, { "docid": "18940191", "title": "", "text": "spoken speech on the one hand and expressive conduct on the other. Id. at 871. Second, Perelman implicitly determined that expressive conduct is per se subject to scrutiny under the test set forth in O’Brien. Id. at 872. Our reconsideration of Perelman requires us' to review both these issues regarding the First Amendment framework for analyzing communicative conduct. A The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const.amend. I. While “[t]he First Amendment literally forbids the abridgment only of ‘speech,’ ” the Supreme Court has “long recognized that its protection does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404,109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). A message “delivered by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative,” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), is symbolic speech that falls “within the scope of the First and Fourteenth Amendments.” Johnson, 491 U.S. at 404, 109 5.Ct. 2533; see also Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir.1999) (“Non-verbal conduct implicates the First Amendment when it is intended to convey a ‘particularized message’ and the likelihood is great that the message would be so understood.” (quoting Johnson, 491 U.S. at 404, 109 S.Ct. 2533)). For instance, “the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment” and is “closely akin to ‘pure speech.’” Tinker v. Des Moines Indep. Cmty. Sch. Disk, 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Similarly, the Court has “recognized the expressive nature of ... a sit-in by blacks in a ‘whites only’ area to protest segregation,” Johnson, 491 U.S. at 404,109 S.Ct. 2533 (citing Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966)), and “of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam,”" }, { "docid": "11747420", "title": "", "text": "¶ 8. . The most apparent factual dispute — between what Montefusco claims he told Detective Macauley at the Seventh Precinct and what Macauley claims Montefusco told him— is irrelevant to the determination of this motion. The relevant fact is that Detective Ma-cauley told the Board and Mostow that Mon-tefusco had admitted to him that he was a voyeur and that he masturbated to the photographs. This information from Macauley, combined with their own viewing of the photos, is the information upon which these defendants acted. It is the reasonableness of the defendants' actions, upon having received this information, that is at issue here. . The statute of limitations for prima facie tort is three years. Bassim v. Hassett, 184 A.D.2d 908, 909, 585 N.Y.S.2d 566, 567-68 (3d Dep’t 1992). . A cause of action accrues when \"it arises or comes into existence,” or when it \"comefs] into existence as an enforceable claim.” Insurance Co. of N. Am. v. ABB Power Generation, Inc., 91 N.Y.2d 180, 186, 188, 668 N.Y.S.2d 143, 145-46, 147, 690 N.E.2d 1249 (quoting Black's Law Dictionary 21 [6th ed.1990]) (majority opinion and Levine, J., concurring). . To determine whether conduct is imbued with such elements of communication, the Supreme Court has asked whether an intent to convey a particular message was present and whether there was a great likelihood that the message would be understood by the viewer or listener. Id. (citing Spence, 418 U.S. at 410-11, 94 S.Ct. 2727). Thus, as set forth in Johnson, the Court has recognized the expressive nature of the wearing of black armbands in protest of the Vietnam war, Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); a sit-in by blacks in a whites-only area to protest segregation, Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); the wearing of U.S. military uniforms in a dramatic presentation critical of U.S. involvement in Vietnam, Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); and picketing for a variety of causes," }, { "docid": "4389340", "title": "", "text": "to express an idea.” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (citation and internal quotation marks omitted). However, the Court has “acknowledged that conduct 'may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Id. (citation and internal quotation marks omitted). In the case at hand, Nordyke argues that possession of guns is, or more accurately, can be speech. In evaluating his claim, we must ask whether “[a]n intent to convey a particularized message [is] present, and [whether] the likelihood [is] great that the message would be understood by those who viewed it.” Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). If the possession of firearms is expressive conduct, the question becomes whether the County’s “regulation is related to the suppression of free expression.” Johnson, 491 U.S. at 403, 109 S.Ct. 2533. If so, strict scrutiny applies. If not, we must apply the less stringent standard announced in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The first step of this inquiry— whether the action is protected expressive conduct — is best suited to an as applied challenge to the Ordinance. However, in this case, Nordyke challenged the law before it went into effect. Accordingly, he mounts a facial challenge, relying on hypo-theticals and examples to illustrate his contention that gun possession can be speech. In evaluating Nordyke’s claim, we conclude that a gun itself is not speech. The question in Johnson was whether flag burning was speech, not whether a flag was speech. 491 U.S. at 404-06, 109 S.Ct. 2533. Here too, the correct question is whether gun possession is speech, not whether a gun is speech. Someone has to do something with the symbol before it can be speech. Until the symbol is brought onto County property, the Ordinance is not implicated. See also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (analyzing whether the wearing of armbands is" }, { "docid": "3950415", "title": "", "text": "that was particularly significant in light of the recent shootings at Kent State and the United States invasion of Cambodia. Id. Given the political context in which the conduct occurred, the Court concluded that “[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Id. at 410-411, 94 S.Ct. 2727. The Court concluded that the conduct constituted protected expression because “it would have been difficult for the great majority of citizens to miss the drift of appellant’s point at the time that he made it.” Id. at 410, 94 S.Ct. 2727. Courts have extended constitutional protection to a variety of forms of symbolic conduct expressing political or other ideas. Clark v. Community For Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (sleeping in a park adjacent to the White House as part of a demonstration against homelessness); O’Brien, 391 U.S. at 376, 88 S.Ct. 1673 (burning one’s draft card); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armbands). However, the Supreme Court has also emphasized that the First Amendment protection afforded to conduct in general has its limits. In Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989), the Court rejected a First Amendment challenge to an ordinance that restricted dance halls to teenagers of a particular age group. As the Court concluded: ‘freedom of speech’ means more than simply the right to talk and to write. It is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. Id. Plaintiffs argue that by engaging in sexual acts, members are expressing “a message of social and sexual liberation to other members of the Club as well as a message of love, trust, and honesty in their relationship" }, { "docid": "23512725", "title": "", "text": "The law at the time of the discharge clearly established that certain forms of conduct are considered speech and are protected by the First Amendment. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-94, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984) (assuming that overnight camping in a public park in connection with a demonstration in support of the homeless was expressive conduct protected by the First Amendment); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981) (nude dancing is constitutionally protected expression); Tinker v. Des Moines School District, 393 U.S. 503, 505-06, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) (wearing black armbands in school is akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966) (sit-in by blacks in a “whites only” area to protest segregation was expression protected by First Amendment); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632-33, 63 S.Ct. 1178, 1182, 87 L.Ed. 1628 (1943) (compulsory flag salute is a form of utterance within the protection of the First Amendment); Florida Gulf Coast Bldg. & Constr. Traders Council, 796 F.2d 1328, 1332 (11th Cir.1986) (distribution of handbills protected by First Amendment); Monroe v. State Court of Fulton County, 739 F.2d 568, 572 (11th Cir.1984) (burning American flag is a form of protected speech); Leonard v. City of Columbus, 705 F.2d 1299, 1303-04 (11th Cir.1983) (taking flag patch off of police uniform is protected speech). The Supreme Court, in Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974), set out the following test for determining whether symbolic acts constitute speech for First Amendment purposes: there must be (1) an intent on the part of the actor to convey a particularized message, and (2) circumstances surrounding the act such that the likelihood is great that the message will be understood by those who view it. Accord Monroe v. State Court of Fulton County, 739 F.2d at 571. Stewart alleges that by leaving the meeting early he" }, { "docid": "23385624", "title": "", "text": "is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Smith, 158 F.3d at 911 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The substantive law determines which facts are material. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. III. FIRST AMENDMENT EXPRESSIVE CONDUCT CLAIMS The First Amendment protects not only verbal and written expression, but also symbols and conduct that constitute “symbolic speech.” See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). As the Supreme Court explained in Texas v. Johnson: While we have rejected the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea, we have acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments. 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (citations and internal quotations omitted). In evaluating whether particular conduct possesses “sufficient communicative elements” to implicate First Amendment protections, courts must ask whether “[a]n intent to convey a particularized message was present, and ... [whether] the likelihood was great that the message would be understood by those who viewed it.” Id. (alterations in original) (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)). The protection of the First Amendment depends not only on whether the conduct is expressive, but also on the context in which that expression takes place. In the public school arena, the free expression rights of students are balanced by the corresponding interest of furthering the educational mission of schools. Compare Tinker, 393 U.S. at 506, 89 S.Ct. 733 (recognizing that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”), with Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (“A school need not tolerate student speech that is" }, { "docid": "12275456", "title": "", "text": "flag by a protestor during a political march at the Republican National Convention, Texas v. Johnson, 109 S.Ct. at 2540, in the wearing of black arm-bands, by school students on particular days in protest of the Vietnam War, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 735, 21 L.Ed.2d 731 (1969), in the peaceful picketing by union members of a supermarket in a large shopping center to protest unfair labor practices, Amalgamated Food Employees Union Local 509 v. Logan Valley Plaza, Inc., 391 U.S. 308, 313-14, 88 S.Ct. 1601, 1605-06, 20 L.Ed.2d 603 (1968), and in conducting a silent sit-in by black persons against a library’s segregation policy, Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-24, 15 L.Ed.2d 637 (1966). We note that in all of these cases there was little doubt from the circumstances of the conduct that it formed a clear and particularized political or social message very much understood by those who viewed it. More than one constitutional scholar has commented that in these cases the “expressive behavior is ‘100% action and 100% expression.’ ” L. Tribe, American Constitutional Law § 12-7, at 827 (2d ed. 1988) (quoting Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv.L.Rev. 1482, 1495-96 (1975)). In other words, the conduct and the expression were inextricably joined. Pursuant to the criteria articulated in Spence, 418 U.S. at 410-11, 94 S.Ct. at 2730, begging is not inseparably intertwined with a “particularized message.” It seems fair to say that most individuals who beg are not doing so to convey any social or political message. Rather, they beg to collect money. Arguably, any given beggar may have “[a]n intent to convey a particularized message,” e.g.: “Government benefits are inadequate;” “I am homeless;” or “There is a living to be made in panhandling.” To be sure, the possibilities are myriad. However, despite the intent of an individual beggar, there hardly seems to be a “great likelihood” that the subway passengers who witness the conduct are able to" } ]

[ { "docid": "6302972", "title": "", "text": "Cir., 1924, 300 F. 5; The Delaware, 1896, 161 U.S. 459, 16 S.Ct. 516,40 L.Ed. 771. The duty imposed by the common-law upon water carriers was merely to transport from port to port, or from wharf to wharf. The carrier was not bound to deliver at the warehouse of the consignee; it was the duty of the consignee to receive the goods at the wharf. But the carrier was duty bound to notify the consignee of the vessel’s arrival and the time of discharge. The carrier was also obliged to discharge its cargo at a fit wharf, to separate each consignment so as to afford the consignee ready access for inspection and removal, and to protect the cargo until the consignee had a reasonable opportunity to remove it from the wharf. If the consignee failed to remove his goods within a reasonable time, the carrier could relieve itself from further responsibility only by depositing the goods in a warehouse for the account of the consignee. Richardson v. Goddard (The Tangier), 1859, 23 How. 28, 64 U.S. 28, 38, 16 L.Ed. 412; The Eddy, 1866, 5 Wall. 481, 72 U.S. 481, 495, 18 L.Ed. 486; The Titania, 2 Cir., 1904, 131 F. 229; Vose v. Allen, C.C.S.D. N.Y.1855, Fed.Cas.No. 17,006, affirming D.C. S.D.N.Y.1854, Fed.Cas.No.17,005; Dibble v. Morgan, C.C.E.D.Tex.1873, Fed.Cas.No. 3,881; Warner v. The Illinois, C.C.E.D.Pa. 1884, Fed.Cas.No.l7,184a; The Mary Washington, C.C.Md.1865, Fed.Cas.No.9,229; The Middlesex, C.C.Mass.1857, Fed.Cas. No.9,533; The Grafton, D.C.S.D.N.Y. 1844, Fed.Cas.No.5,656, affirmed, C.C.S.D.N.Y. 1846, Fed.Cas.No.5,655. But these were the elements of a “proper” delivery only when the custom, regulations, or law of the port did not otherwise provide. As the Supreme Court stated in Constable v. National Steamship Company, 1894, 154 U.S. 51 at page 63, 14 S.Ct. 1062, 1067, 38 L.Ed. 903, “No rule is better settled than that the delivery must 'be according to the custom and usage of the port, and such delivery will discharge the carrier of his responsibility.” The common-law did not permit less nor require more in the way of delivery than the usage or law of the port dictated. Cases, holding that a" } ]

[ { "docid": "6544824", "title": "", "text": "released from the ship’s tackle at port. 46 U.S.C. § 1301(e). Consequently, the Harter Act is still applicable to any period between the. discharge of the cargo from the vessel and its proper deliv ery.... The Act itself does not define “proper delivery”, but only prevents the carrier from agreements which would relieve it from liability for loss arising from negligence, including improper loading or delivery. 42 U.S.C. §§ 190, 191. General maritime law requires that a carrier “unload the cargo onto a dock, segregate it by bill of lading and count, put it in a place of rest on the pier so that it is accessible to the consignee, and afford the consignee a reasonable opportunity to come and get it.” 702 F.2d at 1255 (citations omitted) (quoting F.J. Walker, Ltd. v. M/V LEMONCORE, 561 F.2d 1138, 1142 (5th Cir.1977)). This general duty of delivery, however, is subject to the “custom of the port doctrine,” which is the well-settled rule announced in Tan Hi v. United States, 94 F.Supp. 432, 435 (N.D.Cal.1950) that the common law requirements of proper delivery are modified by the custom, regulations, or law of the port of destination. As explained by that court, the duties to discharge cargo to a fit wharf, to separate each segment, and to protect the cargo until the consignee has a reasonable opportunity to remove it from the wharf, were elements of a proper delivery “only where the custom, regulations, or law of the port did not otherwise pro-vide_ The common-law did not permit less nor require more in the way of delivery than the usage or the law of the port dictated.” Id. at 1255-26. This circuit has applied the custom of the port doctrine to determine who is entitled to receive cargo from the carrier. Thus, in Allstate Ins. Co. v. Imparca Lines, 646 F.2d 166 (5th Cir. Unit B May 1981), we directly held that delivery to customs authorities constitutes proper delivery where the custom or law of the port requires such: “[A] carrier’s delivery to persons charged by the law and usage of the port" }, { "docid": "16577704", "title": "", "text": "Harter Act; the Harter Act was largely superseded by COGSA, which was passed in 1936. Sun Oil Co. of Pa. v. M/T Carisle, 771 F.2d 805, 809 (3d Cir.1985). Under the Harter Act, it is unlawful for the manager, agent, master, or owner of any vessel transporting merchandise or property between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery.... Any and all words or clauses of such import ... shall be null and void and of no effect. 46 U.S.C.App. § 190. Thus, while COGSA defines a carrier’s liability from the time when the goods are loaded on to the time when they are discharged from the ship, ... the Harter Act applies until the carrier delivers the cargo. The Harter Act generally imposes a non-waiva-ble duty of care upon the carrier during the post-discharge, pre-delivery period. English Elec. Valve Co. v. M/V Hoegh Mallard, 814 F.2d 84, 87 (2d Cir.1987). Union Steel asserts that discharging steel products which can be damaged by exposure to weather and failing to protect such products from the weather after discharge would constitute improper delivery under the Harter Act. This position appears to be reasonable, as the Harter Act imposes a duty on carriers to deliver the goods from wharf to wharf, to notify the consignee of the vessel’s arrival, and to protect the cargo until the consignee has a reasonable opportunity to remove it unless these obligations are modified by local port law, custom or regulation. Farrell Lines, Inc. v. Highlands Ins. Co., 696 F.2d 28, 29 (2d Cir.1982) (per curiam); Allstate Ins. Co. v. Imparca Lines, 646 F.2d 166, 168 (5th Cir. Unit B 1981); Black Sea & Baltic General Ins. Co. v. S.S. Hellenic Destiny, 575 F.Supp. 685, 687-88 (S.D.N.Y.1983). Union Steel argues that the KCC does not have any provision corresponding to the Harter Act, and" }, { "docid": "6544823", "title": "", "text": "delivery is to he it will be for the law of the land, the law of the port of destination to say.” E. Thus, the text of COGSA and its underlying policies and history require that “delivery” be afforded its general legal meaning: the point at which the carrier has fidfilled its responsibilities to carry, discharge, and otherwise perform its contractual duties with respect to the cargo. “Delivery” occurs when the carrier places the cargo into the custody of whomever is legally entitled to receive it from the carrier. The final question, therefore, is when, as a matter of contract and maritime law, delivery occurred. The case of Tapco Nigeria v. M/V WESTWIND, 702 F.2d 1252 (5th Cir.1983), led to an oft-cited articulation of the delivery standard under COGSA and the Harter Act: Although the Harter Act was partially superseded by passage of the Carriage of Goods by Sea Act, COGSA defines the duty of care only from the time the goods are loaded on to the ship until the time when the cargo is released from the ship’s tackle at port. 46 U.S.C. § 1301(e). Consequently, the Harter Act is still applicable to any period between the. discharge of the cargo from the vessel and its proper deliv ery.... The Act itself does not define “proper delivery”, but only prevents the carrier from agreements which would relieve it from liability for loss arising from negligence, including improper loading or delivery. 42 U.S.C. §§ 190, 191. General maritime law requires that a carrier “unload the cargo onto a dock, segregate it by bill of lading and count, put it in a place of rest on the pier so that it is accessible to the consignee, and afford the consignee a reasonable opportunity to come and get it.” 702 F.2d at 1255 (citations omitted) (quoting F.J. Walker, Ltd. v. M/V LEMONCORE, 561 F.2d 1138, 1142 (5th Cir.1977)). This general duty of delivery, however, is subject to the “custom of the port doctrine,” which is the well-settled rule announced in Tan Hi v. United States, 94 F.Supp. 432, 435 (N.D.Cal.1950) that the" }, { "docid": "10889539", "title": "", "text": "place of rest on the pier so that it is accessible to the consignee, and afford the consignee a reasonable opportunity to come and get it.’ ” F.J. Walker, Ltd. v. M/V LEMONCORE, 561 F.2d 1138, 1142 (5th Cir.1977) (quoting American President Lines, Ltd. v. Federal Maritime Bd., 317 F.2d 887, 888 (D.C.Cir.1962)). The \"summary judgment evidence suggests that proper delivery had occurred. It is undisputed that the cargo was discharged from the vessel by January 25,1991. Metropolitan was obviously aware that the cargo was discharged and ready to be picked up by January 31, the day that it requested a survey of the cargo by Centroport. Although there did appear to be some problems separating or identifying the cargo on the dock, Centroport was able to locate the goods on the dock by bills of lading in early February. Finally, Metropolitan has never claimed that any damage occurred during the unloading and delivery onto the dock so as to preclude a finding of proper delivery. Thus, there is no genuine issue of material fact on the issue of proper delivery of the goods within the meaning of the Harter Act. Accordingly, Metropolitan’s claim for conversion is predicated on state tort law, not admiralty law. II. Because there is no longer any subject matter jurisdiction over Metropolitan’s remaining state law claim for conversion, we must decide whether to exercise supplemental jurisdiction. The decision to exercise supplemental jurisdiction is within our discretion. Newport Ltd. v. Sears, Roebuck & Co., 941 F.2d 302, 307 (5th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1175, 117 L.Ed.2d 420 (1992). We must consider judicial economy, convenience, fairness, and comity in deciding whether to exercise supplemental jurisdiction over remaining state law claims. Id. Because the parties have presented summary judgment evidence and briefed their arguments on the remaining conversion issue, judicial economy and convenience weigh in favor of exercising jurisdiction. See Ingram Corp. v. J. Ray McDer- mott & Co., 698 F.2d 1296, 1319-20 (5th Cir.1983). III. Louisiana has a one-year prescriptive period for tort actions for conversion. La.Civ.Code Ann. art. 3492 (West Supp. 1993); Blunt" }, { "docid": "10889538", "title": "", "text": "Harter Act applies to the period between the discharge of the cargo from the vessel until proper delivery of the cargo. Topeo, 702 F.2d at 1255. The Harter Act defines the carrier’s duty for proper loading, stowage, custody, care, and delivery. 46 U.S.C.App. § 190. The act complained of is the salvage sale of the cargo by Hyundai. Thus, the dispositive issue is whether proper delivery occurred before the sale. If it did, then neither the Harter Act nor the bills of lading would apply, and Metropolitan’s claim would be a state tort claim for conversion, not a claim within the admiralty jurisdiction of the court. See Interocean Steamship Corp. v. New Orleans Cold Storage and Warehouse Co., 865 F.2d 699, 703-04 (5th Cir.1989). “Proper delivery” within the meaning of the Harter Act is to discharge the cargo “upon a fit and customary wharf.” Topco, 702 F.2d at 1255. General maritime law requires a carrier to “ ‘unload the cargo onto a dock, segregate it by bill of lading and count, put it in a place of rest on the pier so that it is accessible to the consignee, and afford the consignee a reasonable opportunity to come and get it.’ ” F.J. Walker, Ltd. v. M/V LEMONCORE, 561 F.2d 1138, 1142 (5th Cir.1977) (quoting American President Lines, Ltd. v. Federal Maritime Bd., 317 F.2d 887, 888 (D.C.Cir.1962)). The \"summary judgment evidence suggests that proper delivery had occurred. It is undisputed that the cargo was discharged from the vessel by January 25,1991. Metropolitan was obviously aware that the cargo was discharged and ready to be picked up by January 31, the day that it requested a survey of the cargo by Centroport. Although there did appear to be some problems separating or identifying the cargo on the dock, Centroport was able to locate the goods on the dock by bills of lading in early February. Finally, Metropolitan has never claimed that any damage occurred during the unloading and delivery onto the dock so as to preclude a finding of proper delivery. Thus, there is no genuine issue of material fact" }, { "docid": "6544826", "title": "", "text": "with the duty to receive cargo and distribute it to the consignee is a good delivery on the part of the carrier.” Id. at 168-69 (quoting Tan Hi, 94 F.Supp. at 435). Thus, while contract and maritime law generally will dictate into whose custody an ocean carrier is required to deliver cargo, such law will be overridden by the established law or custom of the port of delivery. In this case, it appears that the custom and laws of the port of La Guaría require ocean carriers to deliver cargo to an authorized customs warehouse pending clearance. IMC accordingly delivered the cargo of the ANDREALON to Mercaduana, completing such delivery on May 2, 1992. Once IMC had properly placed its cargo in the hands of the party authorized to receive it, IMC had “delivered” the cargo, and the one-year time-for-suit period began to run. Because Servicios and Orimpex filed suit more than a year after this “delivery,” the claims for damage from that shipment are barred under 46 U.S.C. app. § 1303(6). Although this result seems, facially, somewhat harsh, it is fair. Limitation periods exist solely for the benefit of defendants and always will produce harsh results when they operate to bar a claim that is otherwise valid. Servicios and Orimpex had ample opportunity to file suit well before the period ex pired. They knew of the damage almost immediately upon discharge. The district court found, as a matter of fact, that the damage was visible when the cargo was offloaded from the ANDREALON. Servicios hired a surveyor who examined and documented the damage as the cargo was unloaded and stored in the Mercaduana customs warehouse. The record contains photographs showing visible and obvious damage to the cargo as it sits on the wharf under the ship’s slings. In sum, Servicios and Orimpex had a year to file suit but neglected to do so. It is fair that the claims should be time-barred. III. COGSA provides that “[n]either the carrier nor the ship shall in any event be or become liable for any loss or damage to ... goods in" }, { "docid": "21359348", "title": "", "text": "of port customs and regulations to the contrary, “proper delivery” constitutes delivery at a fit and customary wharf. Isthmian S. S. Co. v. California Spray-Chemical Corp., 290 F.2d 486 (9 Cir. 1961), affirmance adhered to on rehearing, 300 F.2d 41 (1962); Caterpillar Overseas, S. A. v. S. S. Expeditor, supra; Tan Hi v. United States, 94 F.Supp. 432 (N.D.Cal.1950). No contrary port custom or regulation was established in this case and, by its own terms, the contract of affreightment expressed in the bill of lading came to an end when the goods were discharged onto the pier, segregated by the stevedore, and notice given to the consignee of the time and place of delivery. Cf. Constable v. National S. S. Co., 154 U.S. 51, 14 S.Ct. 1062, 38 L.Ed. 903 (1894); The Eddy, 5 Wall. 481, 18 L.Ed. 486 (1886); The Titania, 131 F. 229 (2 Cir. 1904). And thereafter, “[u]ntil receipt by the consignee, the carrier, despite any terms to the contrary in its bill of lading, continues to hold goods unloaded by it as a bailee. Or, as some cases have put it, where, by the terms of the bill of lading, the contract of carriage terminates on discharge of the cargo from the ship, its liability changes from that of a common carrier to that of a warehouseman, * * Standard Brands Inc. v. Nippon Yusen Kaisha, 42 F.Supp. 43, 44 (D.Mass.1941). See also, The Italia, 187 F. 113 (2 Cir. 1911). II. At the time the goods were delivered to the impostors, Cunard was no longer in physical possession of them, having chosen, without notice to the consignee, to allow Clark, its stevedore, to come into physical possession of the cargo and to serve in Cunard’s stead. As was stipulated at the trial, Clark undertook to deliver the cargo unloaded from the SS Trelyon to the named consignee in the bill of lading upon receiving advice from Cunard that all freight charges had been paid. The stevedore was “an agent selected by the carrier to carry out the carrier’s obligation to safely deliver and discharge the" }, { "docid": "10352691", "title": "", "text": "satisfy the terms of the bill of lading issued by the carrier which provided that the responsibility of the carrier “shall altogether cease when the goods have been discharged and possession is received or taken by Customs or other authorities .... ” See Allstate Insurance Co., supra; Tan Hi, supra. However, conflict exists between this custom of the port and the Port Regulations adopted by NPA, which provide in Section IV — 84(2) that: “Cargo shall only be regarded as landed when placed and safely deposited in Transit Warehouse or at a place designated by the Port Manager, and until then delivery of the cargo shall not be considered to have been made to the Authority.” (Emphasis supplied.) The purpose of this regulation is to immunize the NPA from liability for losses occurring between the stringpiece and transit warehouse. Both custom and regulations of a foreign port are looked to in determining proper delivery. We have not found a case in which a conflict exists between equally applicable standards as to what constitutes proper delivery. In our opinion the risk of loss under these circumstances, where the carrier has relinquished control of the cargo, should be borne by the consignee. The consignee or its agent at the port has a presence far superior to the carrier’s to control the cargo. It is in a much better position to protect against any loss after delivery to the stringpiece. The court below, 532 F.Supp. 77, properly limited recovery to $5,197.50. Affirmed." }, { "docid": "6302974", "title": "", "text": "carrier’s delivery to persons charged by the law and usage of the port with the duty to receive cargo' and distribute it to the consignee is a good delivery on the part of the carrier, are footnoted. It is true that delivery to customs or other authorities does not relieve the carrier of responsibility for cargo, if such authorities are not actually charged by law or usage with the duty to receive cargo and distribute it to the consignees or if such authorities take control of cargo only because the carrier negligently fails to comply with customs regulations. But in the present case Philippine law did require respondent to deliver all cargo to the customs agents who were charged with com píete responsibility for safe delivery to the consignees. A further contention of libelants is that the law of the Philippines cannot lessen the obligation to make proper delivery imposed by the law of the United States. This may be so, but such is not the effect of the Philippine law. For the law of the United States is that a “proper delivery” is a delivery made in accordance with the usage or law of the port of destination. It is also urged that a delivery according to the usage or law of the port cannot be a proper delivery if cargo is thereby subjected to unusual risks. This might be true if the risks to which a particular shipment were subjected were unusual in relation to the risks ordinarily involved in making delivery as required by the usage or law of the port. See Stone v. Rice, 1877, 58 Ala. 95. But, any such rule has no applicability to the present case since the risks inherent in making delivery in accordance with the law at Manila had long existed and were well known to both libelants and respondent. The fact that port usage or law may subject cargo to risks that are not incident to a normal delivery at other ports is immaterial in itself. The very value of a peculiar port usage or regulation may lie in the" }, { "docid": "16577705", "title": "", "text": "carrier during the post-discharge, pre-delivery period. English Elec. Valve Co. v. M/V Hoegh Mallard, 814 F.2d 84, 87 (2d Cir.1987). Union Steel asserts that discharging steel products which can be damaged by exposure to weather and failing to protect such products from the weather after discharge would constitute improper delivery under the Harter Act. This position appears to be reasonable, as the Harter Act imposes a duty on carriers to deliver the goods from wharf to wharf, to notify the consignee of the vessel’s arrival, and to protect the cargo until the consignee has a reasonable opportunity to remove it unless these obligations are modified by local port law, custom or regulation. Farrell Lines, Inc. v. Highlands Ins. Co., 696 F.2d 28, 29 (2d Cir.1982) (per curiam); Allstate Ins. Co. v. Imparca Lines, 646 F.2d 166, 168 (5th Cir. Unit B 1981); Black Sea & Baltic General Ins. Co. v. S.S. Hellenic Destiny, 575 F.Supp. 685, 687-88 (S.D.N.Y.1983). Union Steel argues that the KCC does not have any provision corresponding to the Harter Act, and that under the KCC the carrier might not be liable for damage flowing from such an improper delivery.. Therefore, argues Union Steel, the choice of Korean law operates as a clause limiting the carrier’s liability in violation of the Harter Act. As support, Union Steel cites Knott v. Botany Worsted Mills, 179 U.S. 69, 21 S.Ct. 30, 45 L.Ed. 90 (1900), wherein the Supreme Court nullified a choice of law provision under the Harter Act because the chosen law would give effect to a bill of lading provision purporting to exempt the carrier from liability for damage to goods caused by the carrier’s negligence in loading and stowing cargo. There are problems with Union Steel’s argument. First, the complaint alleges that the steel fence pipe was not in good order and condition when it was discharged,(complaint, ¶ 13), strongly suggesting that Union Steel intends to prove that the steel pipe was damaged sometime prior to its unloading from the M/V Sanko Spruce and not at some point in time between discharge and delivery. Second, Union" }, { "docid": "6544825", "title": "", "text": "common law requirements of proper delivery are modified by the custom, regulations, or law of the port of destination. As explained by that court, the duties to discharge cargo to a fit wharf, to separate each segment, and to protect the cargo until the consignee has a reasonable opportunity to remove it from the wharf, were elements of a proper delivery “only where the custom, regulations, or law of the port did not otherwise pro-vide_ The common-law did not permit less nor require more in the way of delivery than the usage or the law of the port dictated.” Id. at 1255-26. This circuit has applied the custom of the port doctrine to determine who is entitled to receive cargo from the carrier. Thus, in Allstate Ins. Co. v. Imparca Lines, 646 F.2d 166 (5th Cir. Unit B May 1981), we directly held that delivery to customs authorities constitutes proper delivery where the custom or law of the port requires such: “[A] carrier’s delivery to persons charged by the law and usage of the port with the duty to receive cargo and distribute it to the consignee is a good delivery on the part of the carrier.” Id. at 168-69 (quoting Tan Hi, 94 F.Supp. at 435). Thus, while contract and maritime law generally will dictate into whose custody an ocean carrier is required to deliver cargo, such law will be overridden by the established law or custom of the port of delivery. In this case, it appears that the custom and laws of the port of La Guaría require ocean carriers to deliver cargo to an authorized customs warehouse pending clearance. IMC accordingly delivered the cargo of the ANDREALON to Mercaduana, completing such delivery on May 2, 1992. Once IMC had properly placed its cargo in the hands of the party authorized to receive it, IMC had “delivered” the cargo, and the one-year time-for-suit period began to run. Because Servicios and Orimpex filed suit more than a year after this “delivery,” the claims for damage from that shipment are barred under 46 U.S.C. app. § 1303(6). Although this result" }, { "docid": "21359347", "title": "", "text": "Sea Act (COGSA), 46 U.S.C. § 1300 et seq, and the Harter Act, 46 U.S.C. § 190 et seq. The first question then is whether the provisions of the bill of lading are to be altered by the force of statute. As the cargo had been discharged from the ship, the terms of the bill of lading were no longer subject to COGSA, whose coverage is statutorily defined to embrace the period, in foreign commerce, “from the time when the goods are loaded on to the time when they are discharged from the ship.” 46 U.S.C. § 1301(e). Similarly, the bill of lading was no longer subject to the Harter Act, 46 Ú.S.C. § 190, which is applicable to the period between the discharge of the cargo and its “proper delivery.” Caterpillar Overseas, S. A. v. S. S. Expeditor, 318 F.2d 720 (2 Cir. 1963); Gilmore & Black, The Law of Admiralty 126 (1957). While the Harter Act contains no statutory definition of the term “proper delivery,” the courts have held that, in the absence of port customs and regulations to the contrary, “proper delivery” constitutes delivery at a fit and customary wharf. Isthmian S. S. Co. v. California Spray-Chemical Corp., 290 F.2d 486 (9 Cir. 1961), affirmance adhered to on rehearing, 300 F.2d 41 (1962); Caterpillar Overseas, S. A. v. S. S. Expeditor, supra; Tan Hi v. United States, 94 F.Supp. 432 (N.D.Cal.1950). No contrary port custom or regulation was established in this case and, by its own terms, the contract of affreightment expressed in the bill of lading came to an end when the goods were discharged onto the pier, segregated by the stevedore, and notice given to the consignee of the time and place of delivery. Cf. Constable v. National S. S. Co., 154 U.S. 51, 14 S.Ct. 1062, 38 L.Ed. 903 (1894); The Eddy, 5 Wall. 481, 18 L.Ed. 486 (1886); The Titania, 131 F. 229 (2 Cir. 1904). And thereafter, “[u]ntil receipt by the consignee, the carrier, despite any terms to the contrary in its bill of lading, continues to hold goods unloaded by it" }, { "docid": "4215507", "title": "", "text": "PRETTYMAN, Senior Circuit Judge. This is a petition to review an order of the Federal Maritime Board, for which the successor Federal Maritime Commission is now responsible. Petitioners are common carriers by water in the foreign commerce of the United States. The subject of the controversy is demurrage charged for cargo on docks in New York. Ships bringing transoceanic freight into port are required by their transportation obligation, absent a special contract, to unload the cargo onto a dock, segregate it by bill of lading and count, put it at a place of rest on the pier so that it is accessible to the consignee, and afford the consignee a reasonable opportunity to come and get it. This was settled by the courts many years ago. *Circuit Judge Goodrich stated, in North American Smelting Co. v. Moller S. S. Co., that “There is no doubt that in discharging the cargo onto the pier and notifying the consignee the carrier was no longer in possession of the goods so as to suffer the risk of loss not due to any negligence on its part.” The work of unloading and putting the cargo on the dock is done on behalf of the carrier by longshoremen, who are laborers skilled in this sort of thing, or by stevedoring companies under contract with the carriers, these stevedores employing longshoremen. There is not now, and does not appear ever to have been, absent a special contract, any obligation on the part of the carriers to put such cargo actually into the hands of consignees, as by putting it into trucks and hauling it to the consignees’ places of business. Consignees are obligated, after notice and reasonable opportunity, to come and pick up their goods at the pier. A public interest is involved in the problem created when consignees leave cargo on piers for indefinite periods. A port could be blocked by such practice, to the great, detriment of the whole community. This problem became acute in-the port of New York. The Maritime-Commission, by an order of May 29,1947, instituted an investigation and rule-making procedure. After" }, { "docid": "17167127", "title": "", "text": "expert conceded that, due to an insulating effect, it would take some time for outside temperatures to affect the internal temperatures of the cheese. The Court concludes, therefore, that the heat damage to the cheese was as likely, if not more likely, to have occurred on the pier during the heat wave, when the temperature reached over 90 degrees for a period of days, as it was to have occurred prior to discharge. See Goya, supra, 561 F.Supp. at 1083-85. It follows that plaintiffs have not proven discharge of the cheese from the vessel in damaged condition and has not proven a prima facie case under COGSA. However, plaintiffs also argue that the carrier is liable under the Harter Act, 46 U.S.C.App. §§ 190-196 (Supp. IV 1986) or as a bailee for failing to refrigerate or otherwise care for the cheese at the pier. The Harter Act applies from the time that discharge from the vessel is effected until proper delivery of the cargo to a fit and proper wharf at the port of destination has been made. See Caterpillar Overseas, S.A. v. S.S. Expeditor, 318 F.2d 720, 723-24 (2d Cir.), cert. denied, 375 U.S. 942, 84 S.Ct. 347, 11 L.Ed.2d 272 (1963); Goya Foods, supra, 561 F.Supp. at 1085. This duty of care is governed by the customs of the discharge port. English Electric Valve Co. v. M/V Hoegh Mallard, 814 F.2d 84, 87-88 (2d Cir.1987). The carrier has the duty to notify the consignee of the vessel’s arrival and protect the cargo until the consignee has a reasonable opportunity to remove it. Farrell Lines Inc. v. Highlands Ins. Co., 696 F.2d 28, 29 (2d Cir.1982); Insurance Co. of N. Am. v. S/S Italica, 567 F.Supp. 59, 62 (S.D.N.Y.1983). Plaintiffs rely on several eases which have imposed liability upon a carrier for discharging goods to an unheated pier where there is knowledge that the cargo is subject to damage from freezing conditions. See S/S Italica, supra, 567 F.Supp. at 62; British West Indies Produce, Inc. v. S/S Atlantic Clipper, 353 F.Supp. 548, 552 (S.D.N.Y.1973); see also Levatino Co. v." }, { "docid": "10352690", "title": "", "text": "§§ 190-196 (1976). The Harter Act reinstated the common law duty of carriers to deliver the goods from wharf to wharf, notify the consignee of the vessel’s arrival and to protect the cargo until the consignee had a reasonable opportunity to remove it. Tan Hi v. United States, 94 F.Supp. 432 (N.D.Cal., S.D.1950). These obligations are subject to modification based upon the law, regulations and custom of the port in question. Allstate Insurance Co. v. Imparca Lines, 646 F.2d 166, 168 (5th Cir.1981). The National Port Authority of Liberia (NPA) is a governmental entity having exclusive responsibility for administering this port. NPA received the cargo at the stringpiece, placed the cargo in the transit warehouse, and subsequently delivered the cargo to the consignee. Custom and usage at the port called for the NPA to receive the cargo at the string-piece. At that point, the carrier relinquishes control and that would ordinarily constitute proper delivery. Constable v. National Steamship Company, 154 U.S. 51, 63, 14 S.Ct. 1062, 1067, 38 L.Ed. 903 (1894). Such delivery would also satisfy the terms of the bill of lading issued by the carrier which provided that the responsibility of the carrier “shall altogether cease when the goods have been discharged and possession is received or taken by Customs or other authorities .... ” See Allstate Insurance Co., supra; Tan Hi, supra. However, conflict exists between this custom of the port and the Port Regulations adopted by NPA, which provide in Section IV — 84(2) that: “Cargo shall only be regarded as landed when placed and safely deposited in Transit Warehouse or at a place designated by the Port Manager, and until then delivery of the cargo shall not be considered to have been made to the Authority.” (Emphasis supplied.) The purpose of this regulation is to immunize the NPA from liability for losses occurring between the stringpiece and transit warehouse. Both custom and regulations of a foreign port are looked to in determining proper delivery. We have not found a case in which a conflict exists between equally applicable standards as to what constitutes proper delivery." }, { "docid": "17600564", "title": "", "text": "proceeded throughout the week through Friday, July 10. The appellants also argue that the consignee had not taken delivery of the cotton within the time provided by either the regulations or the custom of the port of Ponce, so that Isbrandtsen’s partial reliance upon option (b) of the first paragraph of Sec. 15 of the bill of lading, quoted hereinabove, is misplaced. The “regulations” to which they refer are contained in a pamphlet of “Charges for Storing and Demurrage” approved by the Public Service Commission of Puerto Rico; and the so-called “custom” refers to the practice on the Ponce municipal pier of waiving storage charges for cotton cargo after expiration of the regulatory five-day “free period” on account of the delay occasioned by the fumigation process. Here, too, we are guided by the reasoning in the North American Smelting Co. case, supra, wherein the court said: “[The] issue was somewhat confused, we think, by references to the so-called five-days free time rule which prevails on this pier. * * * We think the question when a consignee must start paying additional charges to the proprietor of the pier for allowing goods to remain there has nothing whatever to do with the question whether a carrier has used reasonable care in discharging goods from his ship.” In other words, rules and customs concerning storage charges have no relevance to the question of what constitutes a proper delivery of the cargo. It has long been a settled rule of general maritime law that a sea carrier’s liability ends when delivery is on the wharf and suitable and reasonable notice of arrival is given the consignee so as to afford him a fair opportunity to remove the goods or put them under proper care and custody. The Eddy, 5 Wall. 481, 495, 18 L.Ed. 486 (1866); Galveston Wharf Co. v. Galveston, Harrisburg & San Antonio Ry. Co., 285 U.S. 127, 132, 134, 52 S.Ct. 342, 76 L.Ed. 659 (1932); The Bellingham, 57 F.2d 1015, 1018 (C.A. 3, 1932); and North American Smelting Co. v. Moller S. S. Co., supra. All this was here" }, { "docid": "6302973", "title": "", "text": "U.S. 28, 38, 16 L.Ed. 412; The Eddy, 1866, 5 Wall. 481, 72 U.S. 481, 495, 18 L.Ed. 486; The Titania, 2 Cir., 1904, 131 F. 229; Vose v. Allen, C.C.S.D. N.Y.1855, Fed.Cas.No. 17,006, affirming D.C. S.D.N.Y.1854, Fed.Cas.No.17,005; Dibble v. Morgan, C.C.E.D.Tex.1873, Fed.Cas.No. 3,881; Warner v. The Illinois, C.C.E.D.Pa. 1884, Fed.Cas.No.l7,184a; The Mary Washington, C.C.Md.1865, Fed.Cas.No.9,229; The Middlesex, C.C.Mass.1857, Fed.Cas. No.9,533; The Grafton, D.C.S.D.N.Y. 1844, Fed.Cas.No.5,656, affirmed, C.C.S.D.N.Y. 1846, Fed.Cas.No.5,655. But these were the elements of a “proper” delivery only when the custom, regulations, or law of the port did not otherwise provide. As the Supreme Court stated in Constable v. National Steamship Company, 1894, 154 U.S. 51 at page 63, 14 S.Ct. 1062, 1067, 38 L.Ed. 903, “No rule is better settled than that the delivery must 'be according to the custom and usage of the port, and such delivery will discharge the carrier of his responsibility.” The common-law did not permit less nor require more in the way of delivery than the usage or law of the port dictated. Cases, holding that a carrier’s delivery to persons charged by the law and usage of the port with the duty to receive cargo' and distribute it to the consignee is a good delivery on the part of the carrier, are footnoted. It is true that delivery to customs or other authorities does not relieve the carrier of responsibility for cargo, if such authorities are not actually charged by law or usage with the duty to receive cargo and distribute it to the consignees or if such authorities take control of cargo only because the carrier negligently fails to comply with customs regulations. But in the present case Philippine law did require respondent to deliver all cargo to the customs agents who were charged with com píete responsibility for safe delivery to the consignees. A further contention of libelants is that the law of the Philippines cannot lessen the obligation to make proper delivery imposed by the law of the United States. This may be so, but such is not the effect of the Philippine law. For the law of" }, { "docid": "10352689", "title": "", "text": "PER CURIAM: Highlands Insurance Company (Highlands) appeals from a judgment which limited its recovery against Farrell Lines Incorporated (Farrell Lines) to the loss calculated as of the time of the landing of cargo on the stringpiece of a pier in the port of Monrovia. Highlands had insured the consignor against loss of a shipment of cartons of shoes carried on a vessel owned by Farrell Lines and destined for the consignee in Monrovia. The cargo was short when it was landed on the stringpiece. The count taken at the transit warehouse at the port showed an even greater loss. The parties do not contest the respective counts. Highlands paid its insured $60,558.75 to cover the loss calculated from the count at the warehouse. It sought recovery of that sum from Farrell Lines which contends that its liability should be limited to $5,197.50 calculated from the count at the string-piece. The question to be resolved is what constitutes a proper delivery so as to determine the carrier's liability for negligence under the Harter Act, 46 U.S.C. §§ 190-196 (1976). The Harter Act reinstated the common law duty of carriers to deliver the goods from wharf to wharf, notify the consignee of the vessel’s arrival and to protect the cargo until the consignee had a reasonable opportunity to remove it. Tan Hi v. United States, 94 F.Supp. 432 (N.D.Cal., S.D.1950). These obligations are subject to modification based upon the law, regulations and custom of the port in question. Allstate Insurance Co. v. Imparca Lines, 646 F.2d 166, 168 (5th Cir.1981). The National Port Authority of Liberia (NPA) is a governmental entity having exclusive responsibility for administering this port. NPA received the cargo at the stringpiece, placed the cargo in the transit warehouse, and subsequently delivered the cargo to the consignee. Custom and usage at the port called for the NPA to receive the cargo at the string-piece. At that point, the carrier relinquishes control and that would ordinarily constitute proper delivery. Constable v. National Steamship Company, 154 U.S. 51, 63, 14 S.Ct. 1062, 1067, 38 L.Ed. 903 (1894). Such delivery would also" }, { "docid": "22158181", "title": "", "text": "deposit the goods upon the Inman wharf at the risk of the consignees, without previous notice to them, or any knowledge on their part, as to when and where the steamer would be docked and its cargo landed ? It is settled by the authorities that it is the duty of the carrier, unless specially relieved from so doing by the contract of affreightment, to give, due and reasonable notice to the con signee of the time and place of discharging the goods, and to properly separate the different consignments, so as to afford the consignee a fair opportunity to remove the goods, or to put them under proper care and custody. In The Eddy, 5 Wall. 481, 495, the general rule is thus stated by this court: “ Delivery on the wharf, in the case of goods transported by ships, is sufficient under our law, if due notice be given to the consignees and the different consignments be properly separated so as to be open to inspection and conveniently accessible to their respective owners. Where the contract is to carry by water from port to port, an actual delivery of the goods into the possession of the owner or consignee, or at his warehouse, is not required in order to discharge the carrier from his liability. He may deliver them on the wharf; but to constitute a valid delivery there the master should give due and reasonable notice to the consignee, so as to afford him a fair opportunity to remove the goods or put them under proper care and custody. When the goods, after being so discharged and the different consignments properly separated, are not accepted by the consignee or owner of the cargo, the carrier should not leave them exposed on the wharf, but should store them in a place of safety, notifying the consignee or owner that they are so stored, subject to the lien of the ship for the freight and charges, and when he has done so he is no longer liable on his’ contract of affreightment.” This statement of the law is reaffirmed" }, { "docid": "14344587", "title": "", "text": "shippers and carriers to place all of their dealings under COGSA, if they so intend. To hold that this contractual extension of COGSA, to which both shipper and carrier have agreed, may be measured against the state law-of the port in which the cargo may be damaged could undercut these protections and would offer to sellers and shippers the benefit ’of additional legal theories and remedies for which they had not bargained. Certainly, it would not give effect to what we perceive as Congress’ intent. III. Having determined that federal law applies until delivery, we now review the facts to ascertain whether delivery had occurred at the time the cargo was damaged. “Proper delivery” ■ for Harter Act purposes means either actual or constructive delivery. Actual delivery consists [of] completely transferring the possession and control of the goods from the vessel to the consignee or his agent. Constructive delivery occurs where the goods are discharged from the ship upon a fit wharf and the consignee receives due and reasonable notice that the goods have been discharged and has a reasonable opportunity to remove the goods or put them under proper care and custody- B. Elliott, 704 F.2d at 1308 (quoting Orient Overseas Line, Inc. v. Globemaster Baltimore, Inc., 33 Md.App. 372, 365 A.2d 325, 335-36 (1976)). The Act establishes the minimum requirements, but parties are free to contract for further obligations. In those instances, courts must also look to the language of the contract of carriage. In this case, “delivery” is defined in the America Bill as “delivering the goods to or placing the goods at the disposal of the party entitled to receive them.” (J.A.Supp. sec. I.2.) The record shows that at the time of the damage, Ceres had custody of the goods pursuant to its contract with POL. Under that contract, Ceres provided stevedoring and terminal operator services for POL. These services included unloading the vessels, storing the cargo until it could be sent to its final destination, and then loading the cargo onto a truck or railcar, as appropriate. Wemhoener contends that POL’s carriage of the cargo" } ]

[ { "docid": "19017270", "title": "", "text": "The Federal Courts recognize “irresistible impulse” as a defense to criminal conduct. In the instant case, the defense of insanity having been interposed, the burden was upon the accused to overcome the presumption of sanity by evidence sufficient to create a reasonable doubt as to his mental capacity to commit the offense. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499. If the mere preponderance of evidence created a reasonable doubt as to whether appellant acted under an irresistible impulse, the government did not prove his guilt. When there has been created, by the evidence, a reasonable doubt as to whether an accused person acted under an irresistible impulse, the burden is upon the prosecution to establish, beyond a reasonable doubt, that he did not act under an irresistible impulse. Davis v. United States, supra, note 3; Matheson v. United States, 227 U.S. 540, 33 S.Ct. 355, 57 L.Ed. 631. It is submitted by the government that, regardless of the unanimous testimony of six expert psychiatrists and a physician, appellant, in their opinion, acted under an irresistible impulse, and in spite of the fact that there was no. evidence by experts or laymen to the contrary, the trial court was entitled to exercise its independent judgment “by weighing of the case in its entirety, as opposed to being bound by what might ibe considered to be uncontradicted expert opinion evidence,” and to find, under .the evidence in this case, that, beyond a reasonable doubt, appellant did not act 'under an irresistible impulse. In submitting its argument in support of the foregoing proposition, the government considers that the rule applicable to a court which tries a case without a jury is the same as that applicable to a jury, and that “the jury, even if testimony be uncontradicted, may exercise their independent judgment,” citing The Conqueror, 166 U.S. 110, 131, 17 S.Ct. 510, 41 L.Ed. 937. In McKenzie v. United States, 10 Cir., 266 F.2d 524, 527, the court held contrary to the foregoing contention of appellee in a case involving insanity in a criminal case. In" } ]

[ { "docid": "22829337", "title": "", "text": "United States, supra, 1895, 160 U.S. 469, 488, 16 S.Ct. 353, 40 L.Ed. 499; Davis v. United States, 1897, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750; Hotema v. United States, 1902, 186 U.S. 413, 420-421, 22 S.Ct. 895, 46 L.Ed. 1225; and Matheson v. United States, 1913, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631. See Fisher v. United States, 1946, 328 U.S. 463, 467, 66 S.Ct. 1318, 90 L.Ed. 1382, and Leland v. Oregon, 1952, 343 U.S. 790, 800-801, 72 S.Ct. 1002, 96 L.Ed. 1302. Neither need we attempt to ascertain in what respects, if any, the Model Penal Code’s proposal varies in substance from the instructions actually given by the trial court here, or to formulate a more acceptable variation of it as the Third Circuit has tried to do in United States v. Currens, supra, p. 774, footnote 32, of 290 F.2d. This court’s approach to this issue was set forth in the second Dusky, supra, 295 F.2d 743, decided since the present defendant’s trial and conviction. We repeat what was said there, p. 759: “We might add by way of addendum, * * * that we are fully aware of the controversy presently pending in the federal courts over the respective merits of M’Naghten and its irresistible impulse and other variations, and Durham and of other suggested definitions of insanity as a defense to crime. We are aware specifically not only of Durham itself and of our rejection of it in the first Dusky appeal and in Voss, supra, 259 F.2d 699, to which rejection we continue to adhere, but of the approximately 80 cases, after Durham and occasioned by it, which have come before the Court of Appeals of the District of Columbia. We are aware, too, of the extra-judicial expressions of two present members of the Supreme Court of the United States evincing dissatisfaction with M’Naghten and, therefore, of what this presages for M’Naghten’s reception when and if that court undertakes to review it. The Durham Rule: A Meeting Ground for Lawyers and Psychiatrists, William O. Douglas, 1956, 41" }, { "docid": "22156629", "title": "", "text": "the decider’s own conception of right. [They] may conscientiously be seeking to administer justice, but it is personal justice — the justice of Louis IX or Harun al-Rashid, not that described on the lintel of the Supreme Court Building, ‘Equal Justice Under Law.’” Despite the government’s arguments to the contrary, however, we do not believe that the Supreme Court has placed its stamp of approval on M’Naghten, and we find the cases cited for this proposition to be readily and clearly distinguishable. Thus, Davis v. United States (I), 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), and Davis v. United States (II), 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750 (1897), do not represent a square holding as to the sufficiency of M’Naghten. The former was concerned with the issue of burden of proof — rather than the applicable standard — while the latter primarily involved a claim that the trial court’s charge was so narrow as not even to give the defendant the full benefit of M’Nagh-ten. Neither case, in short, raised the question whether M’Naghten should be replaced or supplemented by alternative tests. Subsequent cases are equally barren of direct challenges to M’Naghten. Hotema v. United States, 186 U.S. 413, 22 S.Ct. 895, 46 L.Ed. 1225 (1902), merely held a jury charge sufficiently broad to embrace the particular defense there asserted. Matheson v. United States, 227 U.S. 540, 33 S.Ct. 355, 57 L.Ed. 631 (1913), in which the charge strikingly foreshadowed the much later-developed Durham rule, turned on the fact that the instructions actually given were essentially those requested by the defendant. The remaining decisions cited by the government, finally, concern not a test to be applied in federal prosecutions, but rather the constitutional propriety under the Fourteenth Amendment’s “due process” clause of state adoptions of M’Naghten or variations of M’Naghten. In Leland v. State of Oregon, 343 U.S. 790, 800, 72 S.Ct. 1002, 1008, 96 L.Ed. 1302 (1952), for example, Mr. Justice Clark wrote: “The science of psychiatry has made tremendous strides since that test was laid down in M’Naghten’s Case, but the progress" }, { "docid": "23297068", "title": "", "text": "And from there you went to the Medical Center? A. The Medical Center. “Q. And this gentleman here, Mr. Dusky, would have been one of your earliest patients, so to speak, in psychiatry? A. Well, I had quite a few patients in medical school as well. But at the Medical Center, yes, this would have been one of my first patients at the Medical Center, approximately. “Q. And you have taken quite an interest, of course, in him? A. Yes. His case has been quite interesting.” . This, presumably, is because of our refusal to disapprove on the first appeal, pages 394 and 401 of 271 F.2d, and in Voss v. United States, 8 Cir., 1958, 259 F.2d 699, 702-703, instructions based on M’Naghten, and of our observations in those eases that the Supreme Court has thus far approved the use of such a test. Davis v. United States, supra, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499; Davis v. United States, 1897, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750; Hotema v. United States, 1902, 186 U.S. 413, 420-421, 22 S.Ct. 895, 46 L.Ed. 1225. See Matheson v. United States, 1913, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631; Eisher v. United States, 1946, 328 U.S. 463, 467, 66 S.Ct. 1318, 90 L.Ed. 1382; and Leland v. State of Oregon, 1952, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. . Mr. Justice Cardozo in Steward Machine Co. v. Davis, 1937, 301 U.S. 548, 590, 57 S.Ct. 883, 892, 81 L.Ed. 1279. . Mr. Justice Jackson in Gregg Cartage & Storage Co. v. U. S., 1942, 316 U.S. 74, 80. 62 S.Ct. 932. 935. 86 L.Ed. 1283. . Judge Thurman W. Arnold in Fisher v. United States, 1945, 80 U.S.App.D.C. 96, 149 F.2d 28, 29, affirmed 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382. . We recall that only a little over 5 years ago the Supreme Court said: “The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not" }, { "docid": "22076907", "title": "", "text": "v. United States, 372 F.2d 710 (8th Cir. 1967) (en banc) (M’Naghten permissible if other criteria satisfied), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968) ; Wion v. United States, 325 F.2d 420 (10th Cir.) (en banc), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309 (1964). We read from Freeman, supra, 357 F.2d at 613-614: “Despite the government’s arguments to the contrary, however, we do not believe that the Supreme Court has placed its stamp of approval on M’Naghten, and we find the cases cited for this proposition to be readily and clearly distinguishable. Thus, Davis v. United States (I), 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), and Davis v. United States (II), 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750 (1897), do not represent a square holding as to the sufficiency of M’Naghten. The former was concerned with the issue of burden of proof — rather than the applicable standard — while the latter primarily involved a claim that the trial court’s charge was so narrow as not even to give the defendant the full benefit of M’Naghten. Neither case, in short, raised the question whether M’Naghten Should be replaced or supplemented by alternative tests. “Subsequent cases are equally barren of direct challenges to M’Naghten. Hotema v. United States, 186 U.S. 413, 22 S.Ct. 895, 46 L.Ed. 1225 (1902), merely held a jury charge sufficiently broad to embrace the particular defense there asserted. Matheson v. United States, 227 U.S. 540, 33 S.Ct. 355, 57 L.Ed. 631 (1913), in which the charge strikingly foreshadowed the much later-developed Durham rule, turned on the fact that the instructions actually given were essentially those requested by the defendant. The remaining decisions cited by the government, finally, concern not a test to be applied in federal prosecutions, but rather the constitutional propriety under the Fourteenth Amendment’s ‘due process’ clause of state adoptions of M’Naghten or other variations of M’Naghten. In Leland v. State of Oregon, 343 U.S. 790, 800, 72 S.Ct. 1002, 1008, 96 L.Ed. 1302 (1952), for example, Mr. Justice" }, { "docid": "22829336", "title": "", "text": "the factors which the proposed instruction emphasizes. The refusal so to instruct was not error. (c) This leaves for consideration the propriety of the trial court’s use of the right and wrong test of M’Naghten plus irresistible impulse and the court’s alleged refusal to incorporate into its instructions all the features of the Model Penal Code’s proposal. We need not at this late date review in detail the origin, history, application, and variations of M’Naghten. This has been done adequately and at length in many places. Examples of this are Durham v. United States, supra, pp. 869-874 of 214 F.2d, and United States v. Currens, 3 Cir., 1961, 290 F.2d 751, 763-767. We note, as we have before in Voss v. United States, supra, pp. 702-703 of 259 F.2d; Dusky v. United States, supra, p. 394 of 271 F.2d; and Dusky v. United States, supra, p. 753 of 295 F.2d, that the Supreme Court of the United States, thus far at least, has approved the use of the M’Naghten right and wrong test. Davis v. United States, supra, 1895, 160 U.S. 469, 488, 16 S.Ct. 353, 40 L.Ed. 499; Davis v. United States, 1897, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750; Hotema v. United States, 1902, 186 U.S. 413, 420-421, 22 S.Ct. 895, 46 L.Ed. 1225; and Matheson v. United States, 1913, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631. See Fisher v. United States, 1946, 328 U.S. 463, 467, 66 S.Ct. 1318, 90 L.Ed. 1382, and Leland v. Oregon, 1952, 343 U.S. 790, 800-801, 72 S.Ct. 1002, 96 L.Ed. 1302. Neither need we attempt to ascertain in what respects, if any, the Model Penal Code’s proposal varies in substance from the instructions actually given by the trial court here, or to formulate a more acceptable variation of it as the Third Circuit has tried to do in United States v. Currens, supra, p. 774, footnote 32, of 290 F.2d. This court’s approach to this issue was set forth in the second Dusky, supra, 295 F.2d 743, decided since the present defendant’s trial and conviction." }, { "docid": "23297055", "title": "", "text": "as to defendant’s sanity and that reasonable men must conclude that the government has failed to sustain its burden of proving beyond a reasonable doubt that the accused had the capacity to commit the crime”. United States v. Westerhausen, supra, 7 Cir., 1960, at page 852 of 283 F.2d. This compels an affirmance of the judgment of the trial court. Compare Carpenter v. United States, 4 Cir., 1959, 264 F.2d 565, 570-571, certiorari denied 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548; and Kelley v. United States, 1956, 99 U.S.App.D.C. 13, 236 F.2d 746. The defense, however, urges upon us cases where appellate courts have reversed jury convictions on the ground that the prosecution did not sustain its burden of proving sanity beyond a reasonable doubt. Specifically, we are referred to McKenzie v. United States, supra, 10 Cir., 1959, 266 F.2d 524; Pollard v. United States, supra, 6 Cir., 1960, 282 F.2d 450 (one judge dissenting); Commonwealth v. Cox, 1951, 327 Mass. 609, 100 N.E.2d 14; and to the District of Columbia cases of Douglas v. United States, supra, 1956, 99 U.S.App.D.C. 232, 239 F.2d 52; Wright v. United States, supra, 1957, 102 U.S.App.D.C. 36, 250 F.2d 4; Fielding v. United States, supra, 1957, 102 U.S.App.D.C. 167, 251 F.2d 878, and Satterwhite v. United States, 1959, 105 U.S.App.D.C. 398, 267 F.2d 675. To this list we might add United States v. Westerhausen, supra, 7 Cir., 1960, 283 F.2d 844. There are others in the reports ; see, for example, Isaac v. United States, supra, 1960,109 U.S.App.D.C. 34, 284 F.2d 168, and Fitts v. United States, supra, 10 Cir., 1960,284 F.2d 108. We recognize that these cited cases involve situations, as does the present one, where expert testimony is introduced on behalf of the defendant and where usually the opposing prosecution material consists at the most of lay evidence. But that common feature does not in itself justify any general legal conclusion that the defense is then always entitled to a judgment of acquittal, or that the cases cited above in paragraph 3 are not authoritative. There is nothing essentially" }, { "docid": "22435956", "title": "", "text": "heretofore has consistently and specifically refused to follow the unembellished “product of mental disease or mental defect” standard, first enunciated in New Hampshire a century ago, State v. Pike, 49 N.H. 399 (1870), and adopted for the District of Columbia in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954), and then so vigorously contested in Durham’s numerous progeny. Voss v. United States, 259 F.2d 699, 703 (8 Cir.. 1958); Dusky v. United States, 271 F.2d 385, 394, 401 (8 Cir. 1959), reversed on other grounds 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824; Dusky v. United States, supra, p. 759 of 295 F.2d. We adhered to this rejection in Feguer, p. 243 of 302 F.2d. See Carter v. United States, 332 F.2d 728, 729 (8 Cir. 1964), cert. denied 379 U.S. 841, 85 S.Ct. 79, 13 L.Ed.2d 47. 2. The origin, history, application, and variations of M’Naghten have been reviewed in detail adequately and at length in many places, as, for example, Durham v. United States, supra, pp. 869-874 of 214 F.2d, and United States v. Currens, 290 F.2d 751, 763-767 (3 Cir. 1961), (and now United States v. Freeman, 357 F.2d 606, 615-622 (2 Cir. 1966)). They need no further and repetitive recital by us. 3. The Supreme Court of the United States has approved charges embracing M’Naghten and irresistible impulse (perhaps preferably to be described in terms of uncontrollable.acts) and certainly thus far has not disapproved that approach to the problem of criminal responsibility. Davis v. United States, 160 U.S. 469, 476-478, 16 S.Ct. 353, 40 L.Ed. 499 (1895); Davis v. United States, 165 U. S. 373, 378, 17 S.Ct.-;360, 362, 41 L.Ed. 750 (1897), where -the Court said that-such a charge “was in no degree prejudicial to the rights of the defendant”; Hotema v. United States, 186 U.S. 413, p. 420, 22 S.Ct. 895, p. 898, 46 L.Ed. 1225 (1902), where the Court said, that the whole charge “properly laid down the law in regard to the responsibility of the defendant on account of his alleged mental condition” and where the Court, pp." }, { "docid": "23076773", "title": "", "text": "of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offense charged.” 160 U.S. 488, 16 S.Ct. 358. The court below correctly instructed the .ivtry as to the burden of proof on the issue of insanity. (Tr. 217) . 160 U.S. at page 485, 16 S.Ct. at page 357. . 160 U.S. at page 488, 16 S.Ct. at page 358. . 165 U.S. at page 378, 17 S.Ct. at page 362. . In Hotema v. United States, 186 U.S. 413, 420, 22 S.Ct. 895, 898, 46 L.Ed. 1225, the Supreme Court, in affirming a conviction in this capital case, stated: “The court had already properly instructed the jury as to the test to be applied to the general defense of insanity. In substance it had charged the jury that if defendant knew the nature and quality of his act when he committed it, and that it was wrong and a violation of the law of the land, for which he would be punished, that he was responsible for the act he committed. And upon the matter of irresistible impulse, the charge was, as we have said, at least as favorable to the defendant as he had any right to ask.” The Court reaffirmed its approval of the instruction given in the Davis ease in Matheson v. United States, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631. The opinion of the Court, in Fisher v. United States, involving the question of partial responsibility, makes reference to the fact that the accused “was then sane in the usual legal sense. He knew right from wrong. See M’Naghten’s Case. * * 328 U.S. 463, 466, 63 S.Ct. 1318, 1320, 90 L.Ed. 1382. And the last time the Court had occasion to address itself to this problem, it held that there is no constitutional necessity for state courts to eliminate the right and wrong test from their criminal law. Leland v. State of Oregon, 343 U.S. 790, 801, 72 S.Ct. 1002, 98 L.Ed. 1302. See also, Lee v. United States, 5 Cir., 91 F.2d" }, { "docid": "22874674", "title": "", "text": "or mental illness? In Davis v. United States, 1895, 160 U.S. 469, 486-488, 16 S.Ct. 353, 40 L.Ed. 499, it was settled that when lack •of mental capacity was raised as a defense to a criminal charge the law presumes that all persons are “sane” or in sound mental health but when some evidence of mental disorder is introduced, the prevailing rule in most jurisdictions is that sanity, like any other fact, must be proved as part of the prosecution’s case beyond a reasonable doubt. Leland v. Oregon, 1952, 343 U.S. 790, 797, 72 S.Ct. 1002, 96 L.Ed. 1302. See also Tatum v. United States, 1951, 88 U.S.App.D.C. 386, 190 F.2d 612. Fitts v. United States, 10 Cir., 1960, 284 F.2d 108. In the Tatum ease the court said, supra, 190 F. 2d at page 615, “We are aware, of course, that any attempt to formulate a quantitative measure of evidence necessary to raise an issue can produce no more than an illusory definiteness”. The court went on to indicate that “some evidence” was sufficient to raise the issue of mental illness or insanity, probably something less than that required to create a reasonable doubt, but in the Fitts decision, supra, the Court of Appeals for the Tenth Circuit, by Chief Judge Murrah, ruled that no one could doubt that confinement in a mental institution upon an adjudication of mental illness was sufficient to generate a doubt sufficient to provoke inquiry as to the mental capacity of the accused to commit the crime for which he was charged. Fitts was adjudicated and institutionalized for treatment because of chronic alcoholism. The circumstances relating to Currens’ pretrial examinations and the orders confining him to Lewisburg and the Springfield Medical Center are enough to provoke inquiry as to Currens’ capacity to commit the offense charged in the indictment. It is clear therefore that Currens has met the initial burden imposed on him by the Davis, Tatum and Fitts decisions and that the burden was shifted to the United States to prove beyond a reasonable doubt that Currens possessed the necessary mental capacity, the" }, { "docid": "22042473", "title": "", "text": "; on second appeal, 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750 (1897); United States v. Currens, 3 Cir., 290 F.2d 751, 762 (1961); McDonald v. United States, supra, note 7. The following is quoted from the majority opinion at page 851 of 312 F.2d in the McDonald case: “We emphasize that, since the question of whether the defendant has a disease or defect is ultimately for the triers of fact, obviously its resolution cannot be controlled by expert opinion. The jury must determine for itself, from all the testimony, lay and expert, whether the nature and degree of the disability are sufficient to establish a mental disease or defect as we have now defined those terms. What we have said, however, should in no way be construed to limit the latitude of expert testimony. Carter v. United States, 102 U.S.App.D.C. 227, 236, 252 F.2d 608, 617.” (Emphasis added). . Feule v. Parsons, 160 Iowa 454, 141 N.W. 1049; Miracle v. Barker, supra, note 2. . Carter v. United States, 102 U.S.App. D.C. 227, 252 F.2d at page 617, supra, note 8. . Application of Big Lost River Irr. Dist., supra, note 2. . Rhodes v. State, 232 Ala. 509, 168 So. 869; Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, 106, cert. den. 260 Ala. 699. 71 So.2d 107; Buckhanon v. State, 151 Ga. 827, 829, 108 S.E. 209, 212. . W. Horace Williams Company v. Serpas, 5 Cir., 261 F.2d 857, 860 (1957); Gendel-man v. United States, 9 Cir., 191 F.2d 993 (1951), cert. den. 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680; Martin v. United States, 109 U.S.App.D.C. 83, 284 F.2d 217 (1960); Carter v. United States, 102 U.S. App.D.C. 227, 252 F.2d 608; Carpenter v. United States, 4 Cir., 264 F.2d 565, at p. 570 (1959) ; Tri-Angle Club, Inc. v. United States, 8 Cir., 265 F.2d 829, 832 (1959) ; Clark v. Lucas County Board of Review, supra, note 2; People v. Williams, supra, note 2. The following quotations are taken from the cases just cited: Serpas: Chief Judge Tuttle said that" }, { "docid": "23297045", "title": "", "text": "will as a working hypothesis in the solution ■of its problems” - and also assumes “that, mature and rational persons are in control of their own conduct”. It has been aptly said that “In the determination of guilt age old conceptions of individual moral responsibility cannot be abandoned without creating a laxity of enforcement that undermines the whole administration of criminal law”. And “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil”. Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288. 2. The law consequently indulges in the presumption in favor of a defendant’s sanity. That presumption, however, is rebuttable. The defendant’s sanity may be brought into issue. Once it is in issue, the prosecution, in the federal courts, at least, must establish sanity beyond a reasonable doubt just as it must prove every other element in its case. This is the holding of Davis v. United States, supra, pages 486 and 488 of 160 U.S., 16 S.Ct. 353, 40 L.Ed. 499, decided over 65 years ago. It has been adhered to by the Supreme Court and, of course, has been recognized by various federal Courts of Appeals. See, for example, Davis v. United States, 1897, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750; Hotema v. United States, 1902, 186 U.S. 413, 420-421, 22 S.Ct. 895, 46 L.Ed. 1225; Matheson v. United States, 1913, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631; Leland v. State of Oregon, 1952, 343 U.S. 790, 797, 72 S.Ct. 1002, 96 L.Ed. 1302; Isaac v. United States, 1960,109 U.S.App. D.C. 34, 284 F.2d 168, 169-170; United States v. Currens, 3 Cir., 1961, 290 F.2d 751, 761; Pollard v. United States, 6 Cir., 1960, 282 F.2d 450, 457; United States v. Westerhausen, 7 Cir., 1960, 283 F.2d 844, 851-852;" }, { "docid": "23297047", "title": "", "text": "Fitts v. United States, 10 Cir., 1960, 284 F.2d 108, 112. 3. This and other courts have said that expert opinion as to insanity rises no higher than the reasons upon which it is based, that it is not binding upon the trier of the facts, and that lay testimony can be sufficient to satisfy the prosecution’s burden even though there is expert testimony to the contrary. Dusky v. United States, 8 Cir., supra, p. 397 of 271 F.2d; Holloway v. United States, 1945, 80 U.S.App.D.C. 3, 148 F.2d 665, 667, certiorari denied 334 U.S. 852, 68 S. Ct. 1507, 92 L.Ed. 1774; McKenzie v. United States, 10 Cir., 1959, 266 F.2d 524, 527; Hall v. United States, 4 Cir., 1961, 295 F.2d 26; United States v. Fielding, D.C.D.C., 1957, 148 F.Supp. 46, 55 (reversed 1957, 102 U.S.App.D.C. 167, 251 F.2d 878, without recognition of the point except by the dissenting judge, page 881); Hopkins v. United States, 1959, 107 U.S.App.D.C. 126, 275 F.2d 155, 158. See U. S. v. Spaulding, 1935, 293 U.S. 498, 506, 55 S.Ct. 273, 79 L.Ed. 617. 4. It has been said, too, that the nature and quantum of the evidence which the government must produce to meet its burden so as to justify the submission of the insanity issue to the jury varies with the nature and quantum of the evidence indicating mental illness. Thus, it would seem that only slight evidence presented by the defense may be met by a comparatively small amount of evidence presented by the prosecution. Wright v. United States, 1957, 102 U.S. App.D.C. 36, 250 F.2d 4, 7; Hopkins v. United States, 107 U.S.App.D.C. 126, supra, at page 157 of 275 F.2d; United States v. Westerhausen, supra, 7 Cir., at page 852 of 283 F.2d. See Battle v. United States, 1908, 209 U.S. 36, 38, 28 S.Ct. 422, 52 L.Ed. 670. 5. It has also been observed, with respect to the raising of the issue of a defendant’s insanity, that “any attempt to formulate a quantitative measure of the amount of evidence necessary to raise (the) issue can produce" }, { "docid": "18063076", "title": "", "text": "1480. The court in its instructions followed substantially the test established in M’Naghten’s case, 10 Cl. & Fin. 200, approved by the Supreme Court in Davis v. United States, 160 U.S. 469, 476-477, 480, 488, 492-493, 16 S.Ct. 353, 40 L.Ed. 499; Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750, and Hotema v. United States, 186 U.S. 413, 421, 22 S.Ct. 895, 46 L.Ed. 1225, and by this Court in Voss v. United States, 8 Cir., 259 F.2d 699, 702-703. See also, Fisher v. United States, 328 U.S. 463, 467-470, 66 S.Ct. 1318, 90 L.Ed. 1382, and Leland v. State of Oregon, 343 U.S. 790, 793-796, 72 S. Ct. 1002, 96 L.Ed. 1302. Briefly stated, the M’Naghten test of insanity is insufficient mental capacity, at the time of the commission of an offense, to understand its nature and to know that it is -wrong. That portion of the Court’s charge to which counsel for the defendant directs attention reads as follows; “Now, generally speaking, members of the jury, as I understand the evidence as it has been developed here, there are two principal defenses to the charge which has been presented against the defendant in this case. The first one is, that there was not technically a kidnapping under the statute. Very frankly, if the Government’s evidence is to be believed as to the occurrence, and that is for you to determine, there can be no question but that there is a violation proved of the statute which I read to you at the beginning of this charge; but it is a matter for you to determine whether or not the evidence is as it is claimed to be by the Government. That is a matter that requires your decision. “The other defense is, whether or not the defendant at the time of the commission of the offense was insane. “Now, I think it is proper to tell you in this preliminary statement that in modern day usage, insanity is almost entirely a legal term. As you will have observed from the testimony of" }, { "docid": "18063075", "title": "", "text": "over to the side of the road. I was having spells a lot where I would get out and, well, just something— I would just kind of get in a fog or something; I was scared to drive, scared to go anywhere.” He told of his domestic difficulties and of occasionally slapping his wife, and of his loss of respect for women in general, which he attributed to his wife’s conduct. At the close of the evidence, counsel for the defendant moved for a directed verdict of acquittal on the grounds of the inadequacy of the evidence to sustain a conviction of the offense charged, and the proven insanity of the defendant. The motion was denied. The court refused an instruction requested by the defendant which incorporated the so-called Durham rule, which prevails in the District of Columbia, “ * * * that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 874-875, 45 A.L.R.2d 1480. The court in its instructions followed substantially the test established in M’Naghten’s case, 10 Cl. & Fin. 200, approved by the Supreme Court in Davis v. United States, 160 U.S. 469, 476-477, 480, 488, 492-493, 16 S.Ct. 353, 40 L.Ed. 499; Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750, and Hotema v. United States, 186 U.S. 413, 421, 22 S.Ct. 895, 46 L.Ed. 1225, and by this Court in Voss v. United States, 8 Cir., 259 F.2d 699, 702-703. See also, Fisher v. United States, 328 U.S. 463, 467-470, 66 S.Ct. 1318, 90 L.Ed. 1382, and Leland v. State of Oregon, 343 U.S. 790, 793-796, 72 S. Ct. 1002, 96 L.Ed. 1302. Briefly stated, the M’Naghten test of insanity is insufficient mental capacity, at the time of the commission of an offense, to understand its nature and to know that it is -wrong. That portion of the Court’s charge to which counsel for the defendant directs attention reads as follows; “Now, generally speaking, members of the jury, as" }, { "docid": "23297069", "title": "", "text": "v. United States, 1902, 186 U.S. 413, 420-421, 22 S.Ct. 895, 46 L.Ed. 1225. See Matheson v. United States, 1913, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631; Eisher v. United States, 1946, 328 U.S. 463, 467, 66 S.Ct. 1318, 90 L.Ed. 1382; and Leland v. State of Oregon, 1952, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. . Mr. Justice Cardozo in Steward Machine Co. v. Davis, 1937, 301 U.S. 548, 590, 57 S.Ct. 883, 892, 81 L.Ed. 1279. . Mr. Justice Jackson in Gregg Cartage & Storage Co. v. U. S., 1942, 316 U.S. 74, 80. 62 S.Ct. 932. 935. 86 L.Ed. 1283. . Judge Thurman W. Arnold in Fisher v. United States, 1945, 80 U.S.App.D.C. 96, 149 F.2d 28, 29, affirmed 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382. . We recall that only a little over 5 years ago the Supreme Court said: “The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment, even about a situation as unpromising as petitioner’s, at least as indicated by tbe report of the United States Medical Center at Springfield.” Greenwood v. United States, 1956, 350 U.S. 366, 375, 76 S.Ct. 410, 415, 100 U.Ed. 412. . See also the same judge’s continuing dissent in the subsequent proceedings in the same case. Pollard v. United States, 6 Cir., 1960, 285 F.2d 81, 84. . See, for example, Judge Burger’s appraisal of Douglas in Section I 3 of his extensive separate concurring opinion in Blocker v. United States, D.C.Cir.1961, 288 F.2d 853, 863, where he says: “Under the Douglas opinion, the case is left in the hands of the jury only if there is disagreement among the psychiatrists or if the expert testimony supports guilt; if the psychiatrists all agree that the defendant has a ‘disease’ and the act was its ‘product,’ then the issue is taken from the jury. Paradoxically we call on laymen to resolve conflicts both in technical terms and substance which the experts cannot resolve" }, { "docid": "22435957", "title": "", "text": "F.2d, and United States v. Currens, 290 F.2d 751, 763-767 (3 Cir. 1961), (and now United States v. Freeman, 357 F.2d 606, 615-622 (2 Cir. 1966)). They need no further and repetitive recital by us. 3. The Supreme Court of the United States has approved charges embracing M’Naghten and irresistible impulse (perhaps preferably to be described in terms of uncontrollable.acts) and certainly thus far has not disapproved that approach to the problem of criminal responsibility. Davis v. United States, 160 U.S. 469, 476-478, 16 S.Ct. 353, 40 L.Ed. 499 (1895); Davis v. United States, 165 U. S. 373, 378, 17 S.Ct.-;360, 362, 41 L.Ed. 750 (1897), where -the Court said that-such a charge “was in no degree prejudicial to the rights of the defendant”; Hotema v. United States, 186 U.S. 413, p. 420, 22 S.Ct. 895, p. 898, 46 L.Ed. 1225 (1902), where the Court said, that the whole charge “properly laid down the law in regard to the responsibility of the defendant on account of his alleged mental condition” and where the Court, pp. 418 and 416, p. 897 of 22 S.Ct., characterized as “undoubtedly correct” a charge which permitted excuse only if the degree of the imbalance “must have been sufficiently great to have controlled the will of the accused”; and Matheson v. United States, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631 (1913), where the Court noted that the “exact charge” used in the Davis case was again employed. See, also, Fisher v. United States, 328 U.S. 463, 467, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946), and Leland v. State of Oregon, 343 U.S. 790, 800-801, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), where the Court held that federal due process did not yet require a state to adopt an irresistible impulse test of legal sanity in place of a right and wrong test. 4. This court has been familiar with the various expressions on criminal responsibility illustrated not only by .M’Naghten, Pike, Durham and Currens, but, as well, by State v. Jones, 50 N.H. 369 (1871), and Parsons v. State, 81 Ala. 577, 2" }, { "docid": "22042472", "title": "", "text": "States, 102 U.S.App.D.C. 227, 252 F.2d 608, 617 (1957), and McDonald v. United States, supra, note 5, 312 F.2d at p. 851. . Carter v. United States, 102 U.S.App. D.C. 227, 252 F.2d 608 (1957) ; Carter v. United States, 5 Cir., 325 F.2d 697, 706; Gleuck, Mental Disorder and the Criminal Law, pp. 33, 34; Hall, Psychiatry and Criminal Responsibility, 65 Yale L.J. 761 (1957). . Carter v. United States, supra, note 8, at p. 615 of 252 F.2d. . Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382 (1945) ; Smith v. United States, 9 Cir., 267 F.2d 210 (1959) ; Lee v. Wiman, 5 Cir., 280 F.2d 257, 265 (1960) ; Feguer v. United States, supra, note 2; Hall, Psychiatry and Criminal Responsibility, supra, note 8, who says at p. 767: “It is a fact that among those who are held legally responsible there may yet be various degrees of mental impairment.” . Davis v. United States, 160 U.S. 469, 484, 16 S.Ct. 353, 40 L.Ed. 499 (1895) ; on second appeal, 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750 (1897); United States v. Currens, 3 Cir., 290 F.2d 751, 762 (1961); McDonald v. United States, supra, note 7. The following is quoted from the majority opinion at page 851 of 312 F.2d in the McDonald case: “We emphasize that, since the question of whether the defendant has a disease or defect is ultimately for the triers of fact, obviously its resolution cannot be controlled by expert opinion. The jury must determine for itself, from all the testimony, lay and expert, whether the nature and degree of the disability are sufficient to establish a mental disease or defect as we have now defined those terms. What we have said, however, should in no way be construed to limit the latitude of expert testimony. Carter v. United States, 102 U.S.App.D.C. 227, 236, 252 F.2d 608, 617.” (Emphasis added). . Feule v. Parsons, 160 Iowa 454, 141 N.W. 1049; Miracle v. Barker, supra, note 2. . Carter v. United States, 102 U.S.App. D.C. 227," }, { "docid": "13647445", "title": "", "text": "The question of Kaufman’s sanity at the time of the crime was appropriately raised and was submitted to the jury under instructions which are not challenged. Thus, when the defense asserts that the court erred in denying its motion for acquittal at the close of all the evidence, its position necessarily is that the evidence was such that reasonable men must agree that there was reasonable doubt as to Kaufman’s sanity. Dusky v. United States, 295 F.2d 743, 756 (8 Cir. 1961), cert. denied 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536; United States v. Westerhausen, 283 F.2d 844, 852 (7 Cir. 1960). In Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 358, 40 L.Ed. 499 (1895), the Supreme Court said: “If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offence charged.” In the Dusky opinion, p. 754 of 295 F.2d, we cited the Davis case, the subsequent opinion in the same prosecution, Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750 (1897), and other holdings, and we observed: “The law consequently indulges in the presumption in favor of a defendant’s sanity. That presumption, however, is rebuttable. The defendant’s sanity may be brought into issue. Once it is in issue, the prosecution, in the federal courts, at least, must establish sanity beyond a reasonable doubt just as it must prove every other element in its case.” See also Hurt v. United States, 327 F.2d 978, 981 (8 Cir. 1964). Neither side questions these principles. The government, at oral argument, appeared to concede that it possessed the burden of proving Kaufman’s sanity although it complains that the court’s instructions, by omitting reference to the presumption of sanity, made that burden heavier than it should have been. In any event, we conclude here, as we did in Dusky, p. 755 of 295 F.2d, that on the record before us the evidence was sufficient to" }, { "docid": "22435958", "title": "", "text": "418 and 416, p. 897 of 22 S.Ct., characterized as “undoubtedly correct” a charge which permitted excuse only if the degree of the imbalance “must have been sufficiently great to have controlled the will of the accused”; and Matheson v. United States, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631 (1913), where the Court noted that the “exact charge” used in the Davis case was again employed. See, also, Fisher v. United States, 328 U.S. 463, 467, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946), and Leland v. State of Oregon, 343 U.S. 790, 800-801, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), where the Court held that federal due process did not yet require a state to adopt an irresistible impulse test of legal sanity in place of a right and wrong test. 4. This court has been familiar with the various expressions on criminal responsibility illustrated not only by .M’Naghten, Pike, Durham and Currens, but, as well, by State v. Jones, 50 N.H. 369 (1871), and Parsons v. State, 81 Ala. 577, 2 So. 854 (1887), and the more recent Sauer v. United States, 241 F.2d 640 (9 Cir. 1957), cert, denied 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539 and Blocker v. United States, 110 U.S.App.D.C. 41, 288 F.2d 853 at p. 857, (1961), particularly Judge Burger’s enlightening opinion, concurring in result,. (and now McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962), and United States v. Freeman, supra). .5. That in summary and conclusion, “* * * [W]e would hesitate to reverse a case where the trial court had employed instructions on insanity which this court has heretofore approved and henceforth we would be loath, indeed, to reverse where, as here, the trial court has used instructions, whether based theoretically on a M’Naghten variation or on the test set forth in the Modern Penal Code proposed by the American Law Institute or on that form revised as suggested by the Third Circuit in Currens, or whether couched in still other language, if the charge appropriately embraces and requires positive findings as to 3" }, { "docid": "23297046", "title": "", "text": "establish sanity beyond a reasonable doubt just as it must prove every other element in its case. This is the holding of Davis v. United States, supra, pages 486 and 488 of 160 U.S., 16 S.Ct. 353, 40 L.Ed. 499, decided over 65 years ago. It has been adhered to by the Supreme Court and, of course, has been recognized by various federal Courts of Appeals. See, for example, Davis v. United States, 1897, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750; Hotema v. United States, 1902, 186 U.S. 413, 420-421, 22 S.Ct. 895, 46 L.Ed. 1225; Matheson v. United States, 1913, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631; Leland v. State of Oregon, 1952, 343 U.S. 790, 797, 72 S.Ct. 1002, 96 L.Ed. 1302; Isaac v. United States, 1960,109 U.S.App. D.C. 34, 284 F.2d 168, 169-170; United States v. Currens, 3 Cir., 1961, 290 F.2d 751, 761; Pollard v. United States, 6 Cir., 1960, 282 F.2d 450, 457; United States v. Westerhausen, 7 Cir., 1960, 283 F.2d 844, 851-852; Fitts v. United States, 10 Cir., 1960, 284 F.2d 108, 112. 3. This and other courts have said that expert opinion as to insanity rises no higher than the reasons upon which it is based, that it is not binding upon the trier of the facts, and that lay testimony can be sufficient to satisfy the prosecution’s burden even though there is expert testimony to the contrary. Dusky v. United States, 8 Cir., supra, p. 397 of 271 F.2d; Holloway v. United States, 1945, 80 U.S.App.D.C. 3, 148 F.2d 665, 667, certiorari denied 334 U.S. 852, 68 S. Ct. 1507, 92 L.Ed. 1774; McKenzie v. United States, 10 Cir., 1959, 266 F.2d 524, 527; Hall v. United States, 4 Cir., 1961, 295 F.2d 26; United States v. Fielding, D.C.D.C., 1957, 148 F.Supp. 46, 55 (reversed 1957, 102 U.S.App.D.C. 167, 251 F.2d 878, without recognition of the point except by the dissenting judge, page 881); Hopkins v. United States, 1959, 107 U.S.App.D.C. 126, 275 F.2d 155, 158. See U. S. v. Spaulding, 1935, 293 U.S. 498," } ]

[ { "docid": "16963551", "title": "", "text": "the grantee of $1,000. The evidence makes it clear that all the debts described as due from the grantor in these several conveyances were in fact existing bona fide debts, and that the property conveyed did not appreciably exceed the debts assumed or paid as the consideration by the several grantees. This agreement by the vendee, Hanner, to pay off the debts of the vendor specified as the consideration for the deed, made the vendee personally liable in equity to the creditors of the vendor, and was a promise to pay his own debt to the persons designated by the vendor. This assumption constituted the purchase price which, by direction of the vendor, was made payable to the creditors, of the latter. O’Conner v. O’Conner, 88 Tenn. 76-82, 12 S. W. 447; Moore v. Stovall, 2 Lea, 548; Lawrence v. Fox, 20 N. Y. 268; Burr v. Beers, 24 N. Y. 178; Thompson v. Bertram, 14 Iowa, 476; Thompson v. Thompson, 4 Ohio St. 333; 3 Pom. Eq. Jur. § 1206; Crawford v. Edwards, 33 Mich. 354. Though no express lien was retained to secure the payment of the debts thus assumed by the vendee, yet an equitable lien arose, and the land, in equity, would be charged with the payment of the purchase money, which constituted the consideration upon which the conveyance was made. 3 Pom. Eq. Jur. § 1206; Railroad Co. v. Houston, 85 Tenn. 224, 2 S. W. 36; Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Mich. 10. The intention that the land 'should be subject to an equitable lien to secure the payment of the debts assumed as the purchase price is strongly implied by the circumstances. That the impulse which led to this conveyance was an intent to prefer the debts named in this deed is clear. But this is not evidence of fraud, nor was such a preference prohibited by the law of the state. That the grantor and grantee were close relations and intimate friends is sometimes a circumstance from which fraud may be inferred. It is, however, a circumstance" } ]

[ { "docid": "12273860", "title": "", "text": "in 54 Am.Jur. p. 248, § 313 as “Failure of a trustee to keep the trust property and funds separate, his commingling of them with his own -or other property and funds except where authorized by the express or implied terms of the trust, * * * is a violation of his duty as trustee which renders him liable for any loss therefrom with interest, irrespective of -any other fault on hi-s part, and any profit or gain resulting therefrom inures to the trust estate.” In the absence of definite evidence as to profits or greater loss, the measure of the loss to the trust beneficiaries where there is commingling of funds is legal interest, Mclntire v. McIntire, 192 U.S. 116, 124, 24 S.Ct. 196, 48 L.Ed. 369; Hinckley v. Gil man, C. & S. Railroad Co., 100 U.S. 153, 157, 25 L.Ed. 591; Gaskins v. Bonfils, 10 Cir., 79 F.2d 352, 355, or compounded interest, in the discretion of the Court. Barney v. Saunders, 16 How. 535, 542, 14 L. Ed. 1047; Silver King Coalition Mines Co. of Nevada v. Silver King Consol. Mining Co. of Utah, 8 Cir., 204 F. 166, 180, Ann. Cas. 1918B, 571. This measure is recognized in Missouri. Enright v. Sedalia Trust Co., 323 Mo. 1043, 20 S.W.2d 517, 522-523; Cruce v. Cruce, 81 Mo. 676, 682. Therefore, the amount of interest here must be sustained unless it is diminished for one or more of the reasons advanced in the three other contentions. One of these three other contentions is that “If charged with interest upon balance in favor of Estate, Trustees are entitled to interest upon balance against estate.” The tabulation made by the auditor shows balance in monthly amounts: due to Buder & Buder beginning June, 1931, and ending June, 1932, varying from $3,529.54 to $6,769.80 (five months running above $6,000) ; due from Buder & Buder beginning July, 1932, and ending April, 1933, July and August being $59,775.17, September being $53,688.78, October and November over $8,000 and the remaining five months between $797.81 and $718.29; due to Buder & Buder beginning" }, { "docid": "21502421", "title": "", "text": "Shoe Machinery Co. v. Dancel (C. C. A. 2d) 119 F. 692; s. c. (C. C.) 120 F. 839; s. c. (C. C.) 137 F. 157; s. c. (C. C. A.) 144 F. 679; Philadelphia Rubber Works Co. v. United States Rubber Reclaiming Works (D. C.) 276 F. 613, 615. In the case of Silver King Coalition Mines Co. v. Silver King Consol. Mining Co., supra, which involved the right to sue in equity to enforce the promise of the transferee of the property of a corporation to pay its obligations, Judge Sanborn, speaking for the Circuit Court of Appeals of the Eighth Circuit, stated the rule as follows: “When a grantee contracts with his grantor to pay the latter’s debt or obligation in payment; or in part payment, for the conveyance, the creditor or obligee may accept and appropriate that contract to himself and maintain a suit in equity to enforce it. In that event the grantee becomes the principal debtor and the grantor the surety, and the creditor’s suit stands on the equitable doctrines that the creditor may have the benefit of any security or obligation given by the principal debtor to the surety, and that to avoid circuity of action — that is to say, an action by the creditor against the original debtor and a subsequent action by the latter against his grantee — the creditor may be, and is in equity, substituted for the promisee, the grantor.” And not only is the bill cognizable because it seeks to enforce against the defendant an obligation enforceable only in equity, but also because it asks that the assets transferred bo applied to the satisfaction of the claims of creditors under a lien enforceable in equity. When these assets were transferred to defendant under a promise 6n defendant’s part to assume the liabilities of the Bankers’ Mortgage Company, though no express lien was retained to secure the payment of the debts thus assumed, yet an equitable lien arose, and the assets transferred were chargeable with the payment of the liabilities, the assumption of which constituted the consideration for" }, { "docid": "341945", "title": "", "text": "comprehensive to include plaintiff’s claim, arising from the prior infringements by the selling companies. As said in Silver King Coalition Mines Co. v. Silver King Consolidated Mines Co., 204 Fed. 166, at page 176, 122 C. C. A. 402: “In such a suit it is sufficient that the grantee has agreed with the grantor to ’no primarily liable for the latter’s obligafion to the creditor, so that, as between the jmrties to the agreement the first is the principal and the second the surety. The creditor of the surety is then entitled in equity to be substituted in Ms place, and to maintain his suit against the grantee to the same extent as the grantor could have maintained it, and it is immaterial whether the contract was made and intended for the benefit of the creditor, or of the grantor, for the creditor has all the rights of both to enforce the obligation of ¡he grantee.” In view of the facts and circumstances appearing by the bill and answer the plaintiff no doubt would have a right of action at law to recover upon the promise to pay the debía, and be answerable for the liabilities of the selling company to the extent at least of the value of the property sold and transferred, and, since equity has the power to avoid a multiplicity of suits, it follows, I think, that plaintiff may bring into this action as a defendant the Madison Tire & Rubber Company, Inc. Since the liability is based upon the promise of the purchasing company to the selling company to become primarily liable, it makes no difference that a full and adequate consideration for the property transferred has been paid as alleged in paragraph 3 of the answer. A decree may be entered against the defendants, including the Madison Tire & Rubber Company, Inc." }, { "docid": "21502420", "title": "", "text": "as a consideration for the transfer of assets conferred no right upon the creditors of the Bankers’ Mortgage Company to sue defendant upon their claims at law, but it did give them the right to sue defendant in equity to enforce in their own behalf the promise made to the Bankers’ Mortgage Company for their benefit. Such suit is allowed by equity upon the theory that as a result of the contract and transfer the defendant became the principal debtor, and the Bankers’ Mortgage Company a mere surety, and that to avoid circuity of action equity will enforce the obligation of ’ the principal debtor for the benefit of the creditor. Keller v. Ashford, 133 U. S. 610, 623, 10 S. Ct. 494, 33 L. Ed. 667; Johns v. Wilson, 180 U. S. 440, 21 S. Ct. 445, 45 L. Ed. 613; Silver King Coalition Mines Co. v. Silver King Consol. Mining Co. (C. C. A. 8th) 204 F. 166, Ann. Cas. 1918B, 571; Blackmore v. Parkes (C. C. A. 6th) 81 F. 899; Goodyear Shoe Machinery Co. v. Dancel (C. C. A. 2d) 119 F. 692; s. c. (C. C.) 120 F. 839; s. c. (C. C.) 137 F. 157; s. c. (C. C. A.) 144 F. 679; Philadelphia Rubber Works Co. v. United States Rubber Reclaiming Works (D. C.) 276 F. 613, 615. In the case of Silver King Coalition Mines Co. v. Silver King Consol. Mining Co., supra, which involved the right to sue in equity to enforce the promise of the transferee of the property of a corporation to pay its obligations, Judge Sanborn, speaking for the Circuit Court of Appeals of the Eighth Circuit, stated the rule as follows: “When a grantee contracts with his grantor to pay the latter’s debt or obligation in payment; or in part payment, for the conveyance, the creditor or obligee may accept and appropriate that contract to himself and maintain a suit in equity to enforce it. In that event the grantee becomes the principal debtor and the grantor the surety, and the creditor’s suit stands on the equitable" }, { "docid": "13029061", "title": "", "text": "Goodyear Shoe Machinery Co. v. Dancel, 119 Fed. 692, 56 C. C. A. 300. Diability may be enforced, however, in a suit in equity. Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. Ed. 667; Union Life Ins. Co. v. Hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118; Johns v. Wilson, 180 U. S. 440, 21 Sup. Ct. 445, 45 L. Ed. 613; Dancel v. Goodyear Shoe Machinery Co., 144 Fed. 679, 75 C. C. A. 481. We have searched the record in vain for any evidence disclosing the situs of the execution of the contract between defendant and the Kelly-Atkinson Construction Company. In the absence of any showing to the contrary, the court will presume that the contract was made in a common-law jurisdiction. However, even if it were shown that the contract was made in Illinois, the federal court in an action brought therein, in determining the rights of the parties, will not be bound by the interpretation placed upon the common law by the courts of Illinois, but will determine the common,law independently of the holdings of such state courts. Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865; Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788. But does it necessarily follow that, because a demurrer to the declaration might have been sustained, we must reverse the judgment here rendered? The case was fully tried by the court without a jury. The facts respecting liability are not in serious dispute. The patties have fully and fairly litigated the question of damages. If we were to reverse the judgment, it would not be with directions to dismiss, but to transfer the cause from the law to the equity side of the calendar. The district judge who presided over the law action would sit as chancellor in the equity suit, and upon the same evidence no doubt make the same, findings. Unless required by the rules and the established precedents, we are unwilling thus to pay tribute to" }, { "docid": "21538618", "title": "", "text": "Smith v. Kernochen, 7 How. 198, 216, 12 L.Ed. 666; Jones et al. v. League, 18 How. 76, 15 L.Ed. 263; Farmington v. Pillsbury, 114 U.S. 138, 5 S.Ct. 807, 29 L.Ed. 114; Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 327, 16 S.Ct. 307, 40 L.Ed. 444. Here, as a result of their conveyances-, the brothers and sisters of plaintiff have no further interest in the property which is the subject-matter of the litigation ; and this, we think, is determinative. And it is clear that the noteholders and the trustee under the deed of trust securing same are not indispensable parties whose absence will defeat the jurisdiction. While they are no doubt proper parties, a final judgment or decree can unquestionably be rendered between the other parties to the cause without directly or injuriously affecting their interests, and, as their presence would have the effect of defeating the jurisdiction of the court, the cause may proceed without them. Cobb v. Interstate Mortgage Co., 4 Cir., 20 F.2d 786, 790. The rule applicable was thus stated by the late Judge Walter H. Sanborn in Silver King Coalition Mines Co. v. Silver King Consolidated Mining Co., 8 Cir., 204 F. 166, 169: “An indispensable party is one who has such an interest in the subject-matter of the controversy that a final decree cannot be rendered between the other parties to the suit without radically and injuriously affecting his interest, or without leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience. Every other party who has any interest in the controversy or subject-matter which is separable from the interest of the other parties before the court, so that it will not necessarily be directly or injuriously affected by a decree which does complete justice between them, is a proper party to a suit. But he is not an indispensable party, and if his presence would oust the jurisdiction of the court the suit may proceed without him.” And see Lowenthal v. Georgia Coast & P. R. Co., D.C., 233 F." }, { "docid": "341944", "title": "", "text": "obligation to pay the judgment recovered is a legal conclusion, and the arernient of the pleadings, aside from the legal conclusions, discloses I think a right of action in equity. In taking over the assets and property, and continuing the business the Madison Tire & Rubber Company, Inc., not only assumed to pay all existing debts and liabilities, but it also became primarily liable to the plaintiff under the contract, while at the same time the selling company became surety. In the circumstances the plaintiff, a creditor, has the right in equity of substitution for the grantor (Goodyear Shoe Machinery Co. v. Dancel, 119 Fed. 692, 56 C. C. A. 300; [C. C.] 137 Fed. 157, affirmed 144 Fed. 678, 75 C. C. A. 481), and the infringement in question, and the accounting thereon gave plaintiff the right to enforce the contract of transfer in this court and in this action. That the debt or liability is unliquidated in amount is immaterial, since the meaning of the words used to express file liability are sufficiently comprehensive to include plaintiff’s claim, arising from the prior infringements by the selling companies. As said in Silver King Coalition Mines Co. v. Silver King Consolidated Mines Co., 204 Fed. 166, at page 176, 122 C. C. A. 402: “In such a suit it is sufficient that the grantee has agreed with the grantor to ’no primarily liable for the latter’s obligafion to the creditor, so that, as between the jmrties to the agreement the first is the principal and the second the surety. The creditor of the surety is then entitled in equity to be substituted in Ms place, and to maintain his suit against the grantee to the same extent as the grantor could have maintained it, and it is immaterial whether the contract was made and intended for the benefit of the creditor, or of the grantor, for the creditor has all the rights of both to enforce the obligation of ¡he grantee.” In view of the facts and circumstances appearing by the bill and answer the plaintiff no doubt would have" }, { "docid": "21502426", "title": "", "text": "which arose in favor of the creditors of the Bankers’ Mortgage Company when, without paying its debts, it transferred its entire assets to defendant and practically ceased to exist, no , showing of exhaustion of remedies at law is necessary. As said by Mr. Justice Strong, speaking for the Supreme Court in Case v. Beauregard, supra: “ * * * It may be said that whenever a creditor has a trust in his favor, or a lien upon property for the debt due him, he may go into equity without exhausting legal processes or remedies. Tappan v. Evans, 11 N. H. 311; Holt v. Bancroft, 30 Ala. 193. Indeed, in those eases in which it has been held that obtaining a judgment, and issuing an execution is necessary before a court of equity can be asked to set aside fraudulent dispositions of a debtor’s property, the reason given is that a general creditor has no lien. And when such bills have been sustained without a judgment at law, it has been to enable the creditor to obtain a lien, either by judgment or execution. But when the bill asserts a lien, or a trust, and shows that it can be made available only by the aid of a chancellor, it obviously makes a case for his interference.” - See, also, Wyman v. Wallace, 201 U. S. 230, 242, 26 S. Ct. 495, 50 L. Ed. 738; George v. Wallace (C. C. A. 8th) 135 F. 286, 292; Fraser v. Cole (C. C. A. 7th) 214 F. 556; Okmulgee Window Glass Co. v. Frink (C. C. A. 8th) 260 F. 159. The next question is whether the Bankers’ Mortgage Company is an indispensable party to the suit; and, in considering this question, the first inquiry is what constitutes an indispensable party. We have been able to find no better answer to this inquiry than what was said by Judge Sanborn in the Silver King Coalition Mines Co. Case, supra (204 F. at 169), quoted in part in brief of counsel for appellee, as follows: “An indispensable party is one who has" }, { "docid": "21502430", "title": "", "text": "Mortgage Company is a mere name, without assets and without organization; the defendant being the real and only party interested in defending the.suit. We do not think that the jurisdiction of the court is defeated by the failure to join such corporation as defendant, when by the utmost stretch of the imagination no purpose can be suggested which would be served by its joinder. The same point involved here was before the Circuit Court of Appeals of the Eighth Circuit, in the Silver King Coalition Mines Co. Case, from which we have quoted, and the necessity for joinder was denied. Dancel v. Goodyear Shoe Machine Co. supra (see [C. C.] 137 F. 157, and [C. C. A.] 144 F. 679) was a suit in equity to recover from a corporation to which all of the assets of another corporation had been transferred, and which, as in this case, had assumed all the liabilities of the other corporation. The same point was raised there as here, that the transferring corporation was a necessary party to the suit. The Circuit Court of Appeals of the Second Circuit, in affirming the right to proceed without joining that corporation, said : “It is manifest from the record that the Connecticut company is de facto, if not de jure, defunct; it can have no possible interest in the controversy; and, even if not actually dissolved, its presence on the record can serve no useful -purpose, even were it possible to reach it with process.” See, also, Keller v. Ashford, 133 U. S. 610, 626, 10 S. Ct. 494, 33 L. Ed. 667; Bank of Commerce & Trusts of Richmond, Va., v. McArthur et al. (C. C. A. 5th) 256 F. 84, 86. We have carefully considered the decision in Swan Land & Cattle Co. v. Frank, 148 U. S. 603, 13 S. Ct. 691, 37 L. Ed. 577, and, while there is a surface resemblance between that case and the case at bar, we think that they are fundamentally different, and that the principles there decided are not controlling here. That was a suit to" }, { "docid": "23695770", "title": "", "text": "would have been payable so long as the patent remained in force. We think it should be so read. The term “as an annuity” meant “annuity” merely, and not “but only as an annuity.” It was doubtless unnecessary to use it; but tautology is so frequent in private, as well as public, documents, and in statutes, that undue emphasis ought not to be placed upon the use of redundant words and phrases. The assignments of error also present the question whether the promise can be enforced against the present defendant. The complaint alleges that the defendant (a Maine corporation) purchased the letters patent.from the Goodyear Company (a Connecticut corporation), and in an instrument of assignment to it, and in consideration thereof, agreed to assume all the obligations of the Goodyear pany to pay the annuity provided for in the contract between the latter and Dancel. This averment is admitted by the answer. The effect of this agreement was to create the relation of principal and surety between the defendant and the Connecticut corporation, and as be^ tween those parties the defendant became primarily liable for the obli gations arising from the contract of the Goodyear Company with Dancel; and upon the equitable doctrine that a creditor shall have the benefit by subrogation of any obligation or security, given by the principal to the surety for the satisfaction of the debt, the plaintiffs, if this action had been brought in equity, would have been entitled to enforce the covenant of the defendant. According to the decisions in Second Nat. Bank of St. Louis v. Grand Lodge of Free & Accepted Masons of Missouri, 98 U. S. 123, 25 L. Ed. 75, Cragin v. Lovell, 109 U. S. 194, 3 Sup. Ct. 132, 27 L. Ed. 903, and Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. Ed. 667, the plaintiffs could not maintain an action at law against the defendant upon the covenant. The latter case was a bill in equity by a mortgagee against the grantee of the land subject to the mortgage, which mortgage the" }, { "docid": "14037335", "title": "", "text": "rule which allows interest from the date of the decree, because of the finding of the court. Proof was taken by the court after the master’s death. Oehring v. Fox Co., supra. When the Madison Tire & Rubber Company, Inc., purchased (lie assets and the property of (he United States Rubber Reclaiming Company, Inc., it agreed to assume and pay all debts, obligations, and liabilities whatsoever of the United States Rubber Reclaiming Company, Inc., and to indemnify and hold the United States Rubber Reclaiming Company, Inc., its officers, directors, and agents, harmless of and from the same. When this transfer took place, the Madison Company was cognizant of the pending action and fully acquainted with all the proceedings theretofore had. This was one of the obligations assumed by it and the defendant the Madison Tire & Rubber Company, Inc., may be charged as the principal debtor, because the grantee (the Madison Company) has agreed to be primarily liable for the grantor’s (United States Company) obligation to the creditor (plaintiff). As between the parties to the agreement, the United States Company is the principal and the Madison Company the surety. The plaintiff is entitled in equity to maintain this suit against the Madison Company to the same extent as the United Stales Rubber Reclaiming Company, Inc., could have maintained it. ft is immaterial whether the contract was made and intended for the benefit of the creditor (plaintiff) or of the United States Rubber Reclaiming Company, for the plaintiff has all the rights of both to enforce the obligation as against the Madison Company. Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. Ed. 667; Silver King C. Mines Co. v. S. K. M. Co., 204 Fed. 166, 122 C. C. A. 402, Ann. Cas. 1918B, 571; Dancel v. Goodyear Shoe Machinery Co. (C. C.) 137 Fed. 157. In this action in equity, we think the Madison Company was properly made a party defendant, and that the decree below was proper. For these reasons, the decree is affirmed." }, { "docid": "21538619", "title": "", "text": "was thus stated by the late Judge Walter H. Sanborn in Silver King Coalition Mines Co. v. Silver King Consolidated Mining Co., 8 Cir., 204 F. 166, 169: “An indispensable party is one who has such an interest in the subject-matter of the controversy that a final decree cannot be rendered between the other parties to the suit without radically and injuriously affecting his interest, or without leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience. Every other party who has any interest in the controversy or subject-matter which is separable from the interest of the other parties before the court, so that it will not necessarily be directly or injuriously affected by a decree which does complete justice between them, is a proper party to a suit. But he is not an indispensable party, and if his presence would oust the jurisdiction of the court the suit may proceed without him.” And see Lowenthal v. Georgia Coast & P. R. Co., D.C., 233 F. 1010; Brown v. Crawford, D.C., 252 F. 248; West v. Randall, Fed.Cas. No.17,424; Norfolk Southern R. Co. v. Stricklin, D.C., 264 F. 546; City of Denver v. Mercantile Trust Co., 8 Cir., 201 F. 790; Lawrance v. Southern Pac. Co., C.C., 165 F. 241. But there is another and equally conclusive reason why the noteholders and trustees under the deed of trust need not be joined as parties. Under the Conformity _ Act, 28 U.S.C.A. § 724, the local law governs as to who are necessary parties in law actions. Albany & Rensselaer Iron & Steel Co. v. Lundberg, 121 U.S. 451, 7 S.Ct. 958, 30 L.Ed. 982. As heretofore stated, the action is one at law, being in effect an action in ejectment to try title to land; and it is well settled under the law of North Carolina that a mortgagee or trustee under a deed of trust is not a necessary party to such an action instituted by the mortgagor. Watkins v. Kaolin Mfg. Co., 131 N.C. 536, 42 S.E. 983, 60" }, { "docid": "23695771", "title": "", "text": "be^ tween those parties the defendant became primarily liable for the obli gations arising from the contract of the Goodyear Company with Dancel; and upon the equitable doctrine that a creditor shall have the benefit by subrogation of any obligation or security, given by the principal to the surety for the satisfaction of the debt, the plaintiffs, if this action had been brought in equity, would have been entitled to enforce the covenant of the defendant. According to the decisions in Second Nat. Bank of St. Louis v. Grand Lodge of Free & Accepted Masons of Missouri, 98 U. S. 123, 25 L. Ed. 75, Cragin v. Lovell, 109 U. S. 194, 3 Sup. Ct. 132, 27 L. Ed. 903, and Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. Ed. 667, the plaintiffs could not maintain an action at law against the defendant upon the covenant. The latter case was a bill in equity by a mortgagee against the grantee of the land subject to the mortgage, which mortgage the grantee had agreed to pay. It was held after full examination of the authorities that the mortgagor could not sue at law. It was also held that in equity, as at law, the contract of the purchaser to pay the mortgage, being made with the mortgagor and for his benefit only, created no direct obligation of the purchaser to the mortgagee; but it was also held that, upon the doctrine that the mortgagee was entitled as a creditor to the benefit of any obligation or security given by the purchaser to the mortgagor for the payment of the debt, he could enforce the agreement to pay the mortgage in a court of equity. The cases of Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. 831, 34 L. Ed. 210, and Insurance Co. v. Hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118, are to the same effect. The circumstance that the defendant consented to go to trial before the court as a court of law was not a waiver" }, { "docid": "13226692", "title": "", "text": "143, 23 L. Ed. 855; National Bank v. Grand Lodge, 98 U. S. 123, 25 L. Ed. 75; Shepherd v. May, 115 U. S. 505, 6 Sup. Ct. 119, 29 L. Ed. 456; Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. Ed. 667; Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. 831, 34 L. Ed. 210; Mutual life Ins. Co. v. Hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118; Johns v. Wilson, 180 U. S. 440, 21 Sup. Ct. 445, 45 L. Ed. 613; Equitable Surety Co. v. McMillan, 234 U. S. 448, 34 Sup. Ct. 803, 58 L. Ed. 1394. I have given to these cases a most careful examination. In Keller v. Ashford are found some expressions which tend to support Denison University v. Manning, notwithstanding a decree was entered in favor of the mortgagee against the grantee. In others it is assumed, an'd correctly, that whether an action by the mortgagee against the grantee should be at law or in equity is controlled by the law of the forum. In Mutual Life Ins. Co. v. Hanford it seems to be assumed that the question of the relationship of the grantee to the mortgagee after the latter has notice is one of local law, to be determined by the decisions of the state court of last resort, rather than one of general jurisprudence. This, it seems to be conceded, is an error. All of these cases, however, are reviewed in Johns v. Wilson, and the real questions involved and decided in the previous cases are therein stated to be in accordance with my understanding of them and in harmony with the general rule. In Johns v. Wilson, Mr. Justice Brown, delivering the opinion (180 U. S. 447, 21 Sup. Ct. 447, 45 L. Ed. 613), reviewing Keller v. Ashford and prior cases, says: “That under the equitable doctrine that a creditor shall have the benefit o£ any obligation or security given by the principal to the surety for the payment of the debt, the mortgagee was" }, { "docid": "341943", "title": "", "text": "holding its officers, directors, and agents harmless of and from the same. The answer to the supplemental bill denies that it has agreed or contracted to pay plaintiff herein or the selling company for the use and benefit of plaintiff an amount of money decreed by this court to be paid because of the infringement specified in the bill, but avers that it has paid to the selling company the full value of its property, and therefore is not liable upon any judgment entered against the original defendants. The questions submitted have been examined, and my conclusions are as follows: That the Madison Tire & Rubber Company, Inc., is a proper party defendant, and indeed an indispensable party to the action, since by its contract it assumed all liabilities whatsoever of the sellirig company, indemnifying it and its officers, directors, and agents from further liability therein. It knew at tire time of purchase of the pendency of this action for infringement, and accounting and proceedings had thereon. Hence its denial in the answer of any obligation to pay the judgment recovered is a legal conclusion, and the arernient of the pleadings, aside from the legal conclusions, discloses I think a right of action in equity. In taking over the assets and property, and continuing the business the Madison Tire & Rubber Company, Inc., not only assumed to pay all existing debts and liabilities, but it also became primarily liable to the plaintiff under the contract, while at the same time the selling company became surety. In the circumstances the plaintiff, a creditor, has the right in equity of substitution for the grantor (Goodyear Shoe Machinery Co. v. Dancel, 119 Fed. 692, 56 C. C. A. 300; [C. C.] 137 Fed. 157, affirmed 144 Fed. 678, 75 C. C. A. 481), and the infringement in question, and the accounting thereon gave plaintiff the right to enforce the contract of transfer in this court and in this action. That the debt or liability is unliquidated in amount is immaterial, since the meaning of the words used to express file liability are sufficiently" }, { "docid": "21502429", "title": "", "text": "all of its assets to the defendant, which in turn has assumed all of its obligations. A decree herein will affect the interests of defendant, therefore, but cannot possibly affect the interests of the Bankers’ Mortgage Company. For the same reason it cannot be said that, without the presence of the Bankers’ Mortgage Company, the controversy will be left in such situation that its final determination may be inconsistent with equity and good conscience. No reason has been suggested, and we can think of no reason, why any result .which may be reached in this ease would be inequitable or unjust because of the Bankers’ Mortgage Company not being bound by the decree. No such situation can arise as complainants’ establishing a claim for a larger amount against defendant than defendant could establish agaipst the Bankers’ Mortgage Company; for, whatever the liability established by complainants, ■defendant must pay it with no right of recovery over against that company, which, moreover, has nothing from which recovery might be satisfied even if the right existed. The Bankers’ Mortgage Company is a mere name, without assets and without organization; the defendant being the real and only party interested in defending the.suit. We do not think that the jurisdiction of the court is defeated by the failure to join such corporation as defendant, when by the utmost stretch of the imagination no purpose can be suggested which would be served by its joinder. The same point involved here was before the Circuit Court of Appeals of the Eighth Circuit, in the Silver King Coalition Mines Co. Case, from which we have quoted, and the necessity for joinder was denied. Dancel v. Goodyear Shoe Machine Co. supra (see [C. C.] 137 F. 157, and [C. C. A.] 144 F. 679) was a suit in equity to recover from a corporation to which all of the assets of another corporation had been transferred, and which, as in this case, had assumed all the liabilities of the other corporation. The same point was raised there as here, that the transferring corporation was a necessary party to the" }, { "docid": "13029060", "title": "", "text": "necessarily follows. It must be admitted that in most jurisdictions, upon facts similar to those disclosed in this case, A. may sue C. in an action at law and recover. For collection of cases, see Williston on Contracts, vol. 1, § 381; 9 Cyc. 378. That he cannot do so in all of the states must also be recognized. See Williston on Contracts, supra, and 9 Cyc. 375. The federal courts have taken the position that such a liability cannot be enforced in an action at law. National Bank v. Grand Dodge, 98 U. S. 123, 25 L. Ed. 75; Cragin v. Lovell, 109 U. S. 194, 3 Sup. Ct. 132, 27 L. Ed. 903; Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. 831, 34 L. Ed. 210; Constable v. National Steamship Co., 154 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed. 903; German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220, 33 Sup. Ct. 32, 57 L. Ed. 195, 42 L. R. A. (N. S.) 1000; Goodyear Shoe Machinery Co. v. Dancel, 119 Fed. 692, 56 C. C. A. 300. Diability may be enforced, however, in a suit in equity. Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. Ed. 667; Union Life Ins. Co. v. Hanford, 143 U. S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118; Johns v. Wilson, 180 U. S. 440, 21 Sup. Ct. 445, 45 L. Ed. 613; Dancel v. Goodyear Shoe Machinery Co., 144 Fed. 679, 75 C. C. A. 481. We have searched the record in vain for any evidence disclosing the situs of the execution of the contract between defendant and the Kelly-Atkinson Construction Company. In the absence of any showing to the contrary, the court will presume that the contract was made in a common-law jurisdiction. However, even if it were shown that the contract was made in Illinois, the federal court in an action brought therein, in determining the rights of the parties, will not be bound by the interpretation placed upon the common law by" }, { "docid": "10429454", "title": "", "text": "purchase one, supposing it to be the other, Gorham Mfg. Company v. White, 14 Wall. 511, 81 U.S. 511, 20 L.Ed. 731; Smith v. Whitman Saddle Company, 148 U.S. 674, 679, 680, 13 S.Ct. 768, 37 L.Ed. 606; Ashley v, Weeks-Numan Co., 2 Cir., 220 F. 899, 902; Zidell v. Dexter, 9 Cir., 262 F. 145, 147; and, second, to infringe, the accused device must appropriate the novelty in the patented device which distinguishes it from the prior art. Applied Arts Corp. v. Grand Rapids Metalcraft Corp., 6 Cir., 67 F.2d 428, 429, 430; Whiting Mfg. Co. v. Alvin Silver Co., 2 Cir., 283 F. 75, 80; Smith v. Whitman Saddle Company, supra; S. Dresner & Son v. Doppelt, 7 Cir., 120 F.2d 50, 51. The question whether the patented designs and the accused design are substantially the same is one of fact to be determined by the trial court, and its determination of that fact will not be set aside unless clearly erroneous. Federal Rules of Civil Procedure, rule 52(a), 28 U.S.C.A. following section 723c; Strong-Scott Mfg. Co. v. Weller, 8 Cir., 112 F.2d 389, 395; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199. A finding of fact is clearly erroneous only when it is not supported by substantial evidence, is contrary to the clear weight of the evidence, or is arrived at by the application of a wrong principle of law. Warren v. Keep, 155 U.S. 265, 267, 15 S.Ct. 83, 39 L.Ed. 144; Silver King Coalition Mines Co. v. Silver King Consol. Mining Co., 8 Cir., 204 F. 166, 177, Ann.Cas.1918B, 571. To determine, therefore, whether the conclusion reached by the trial court is clearly erroneous requires a comparison of the features of the patented designs with the prior art and with the accused design. Various types of fruit juicers have been in use for several years. It will be necessary only to examine some of the rack- and-pinion type to which belong the devices under consideration. Standard among these are Shea, No. 382,774, issued 1888; Johnson, No. 101,000, issued 1936, called" }, { "docid": "21502419", "title": "", "text": "in equity. It has no application to a ease where his only remedy is in equity, as where he seeks to establish a liability which only equity will recognize or to enforce an equitable lien or a trust. Day v. Washburn, 24 How. 352, 16 L. Ed. 712; Case v. Beauregard, 101 U. S. 688, 25 L. Ed. 1004. In this case, we think, complainants assert rights against defendant under its assumption of the liabilities of the Bankers’ Mortgage Company, and also rights in the property transferred by that company which only a court of equity can enforce, and consequently the obtaining of judgment and the return of execution need not be shown. The bill alleges, and as stated above we must assume the allegation to be true, that in connection with the transfer made to it the defendant expressly assumed all of1 the liabilities of the Bankers’ Mortgage Company to its creditors, “including plaintiffs and all other subscribers to its stock in the same condition and plight as the plaintiffs.” This assumption of liabilities as a consideration for the transfer of assets conferred no right upon the creditors of the Bankers’ Mortgage Company to sue defendant upon their claims at law, but it did give them the right to sue defendant in equity to enforce in their own behalf the promise made to the Bankers’ Mortgage Company for their benefit. Such suit is allowed by equity upon the theory that as a result of the contract and transfer the defendant became the principal debtor, and the Bankers’ Mortgage Company a mere surety, and that to avoid circuity of action equity will enforce the obligation of ’ the principal debtor for the benefit of the creditor. Keller v. Ashford, 133 U. S. 610, 623, 10 S. Ct. 494, 33 L. Ed. 667; Johns v. Wilson, 180 U. S. 440, 21 S. Ct. 445, 45 L. Ed. 613; Silver King Coalition Mines Co. v. Silver King Consol. Mining Co. (C. C. A. 8th) 204 F. 166, Ann. Cas. 1918B, 571; Blackmore v. Parkes (C. C. A. 6th) 81 F. 899; Goodyear" }, { "docid": "13226693", "title": "", "text": "equity is controlled by the law of the forum. In Mutual Life Ins. Co. v. Hanford it seems to be assumed that the question of the relationship of the grantee to the mortgagee after the latter has notice is one of local law, to be determined by the decisions of the state court of last resort, rather than one of general jurisprudence. This, it seems to be conceded, is an error. All of these cases, however, are reviewed in Johns v. Wilson, and the real questions involved and decided in the previous cases are therein stated to be in accordance with my understanding of them and in harmony with the general rule. In Johns v. Wilson, Mr. Justice Brown, delivering the opinion (180 U. S. 447, 21 Sup. Ct. 447, 45 L. Ed. 613), reviewing Keller v. Ashford and prior cases, says: “That under the equitable doctrine that a creditor shall have the benefit o£ any obligation or security given by the principal to the surety for the payment of the debt, the mortgagee was entitled to avail himself of an agreement in a deed of conveyance from the mortgagor, by which the grantee promised to pay the mortgage. This is upon the theory that the purchaser of land subject to the mortgage becomes the principal debtor, and the liability of the vendor, as between the parties, is that of surety.” Further referring to Union Mutual Life Ins. Co. v. Hanford, he says: “The material question in that case was whether the giving of time to the grantee, without the assent of the grantor, discharged the latter from personal liability. It was held that it did, citing Shepherd v. May.” Nor do I perceive any good reason why the law as thus stated is not sound in principle. The mortgagee, it is true, is not a party to the agreement of assumption entered into between the mortgagor and his\" grantee, and the latter cannot, by any act alone of theirs, make him a party thereto, or impair any of his original rights, tie may stand upon his rights, and enforce" } ]

[ { "docid": "3125176", "title": "", "text": "filed the complaint initiating this lawsuit and sought a temporary restraining order returning her documents. In the few hours between the filing of the motion for a TRO and the hearing on it, a CNMI officer arrested DeNieva, charging her with possession of a false passport and other offenses. The Commonwealth Trial Court, after a hearing, held that there was probable cause to arrest DeNieva. All of the charges against DeNieva were eventually dismissed. On October 19, 1988, CNMI officials relinquished possession of DeNieva’s passport and entry permit. DeNieva pursued her § 1983 claim and, following discovery, DeNieva and the defendants filed cross-motions for summary judgment. The district court denied the defendants’ motion and granted DeNieva’s motion in part, holding that her constitutional right to travel was violated during the 11-day period between the date of confiscation of DeNieva’s passport and the date of her arrest. The court also found that there could be no liability for the period after the arrest because of the finding of probable cause. The only remaining issue — the amount of damages that DeNieva suffered for the 11-day period — was sent to the jury, which awarded DeNieva $50,000. The defendants filed a motion for a new trial, which the district court denied. CNMI and Reyes then filed a timely notice of appeal to this court. DISCUSSION On appeal, the defendants contend that: (1) the court has no jurisdiction over either the CNMI or Reyes in his official capacity because the CNMI is not a “person” within the meaning of 42 U.S.C. § 1983; (2) the CNMI is protected from suit by the doctrine of sovereign immunity; (3) Reyes is protected from suit against him in his individual capacity by qualified immunity; (4) Reyes did not violate DeNieva’s constitutional rights; (5) the district court erred by refusing to admit testimony that DeNieva could have traveled despite the loss of her passport; and (6) the evidence did not support the jury’s award of $50,000. We conclude that DeNieva can maintain this suit only against Reyes in his individual capacity but affirm the finding of liability" } ]

[ { "docid": "11663117", "title": "", "text": "of contract, and estoppel. After granting partial summary judgment to Peter-Palican and presiding over a bench trial, the district court entered judgment in favor of Peter-Palican, holding that (1) under section 22, Peter-Palican had a property interest in continued employment even beyond the term of the governor who appointed her, and (2) her termination without cause therefore violated the Due Process Clause. Peter-Palican, 673 F.3d at 1017. The district court ordered the Commonwealth to reinstate Peter-Palican “to a Commonwealth government position at a salary equal to or greater than that she had as Special Assistant for Women’s Affairs.” Id. Recognizing that Peter-Palican could not recover monetary damages under 42 U.S.C. § 1983, the district court also implied a private right of action against the Commonwealth for violation of section 22 — a claim Peter-Palican had not pleaded — and awarded her approximately $216,000 in damages. Id. The district court did not rule on Peter-Palican’s other claims. The Commonwealth appealed. On March 12, 2012, we certified to the Supreme Court of the Commonwealth of the Northern Mariana Islands the following questions: 1. Does Article III, section 22 of the Commonwealth Constitution, which states that “[t]he Special Assistant may be removed only for cause,” mean that the Special Assistant may never be removed from that position without cause — even beyond the term of the appointing governor — or does it mean that the Special Assistant is protected against termination without cause only during the term of the appointing governor? 2. If the answer to the above question is that Article III, section 22 of the Commonwealth Constitution means the Special Assistant may never be removed for cause even beyond the term of the appointing governor, does Commonwealth law imply a private right of action for monetary damages against the Commonwealth or its officials for violation of that section? Id. at 1014. The Supreme Court graciously accepted certification and, on June 29, 2012, issued its opinion in Peter-Palican v. Government of the Commonwealth of the Northern Mariana Islands, 2012 MP 7, 2012 WL 2564359 (N.Mar.1.2012). The Commonwealth Supreme Court answered the first" }, { "docid": "13271042", "title": "", "text": "479 (7th Cir.1986), and/or to order the indemnification of public officials sued in their personal capacities, we see no basis, in the record or in the laws of the Commonwealth, see P.R. Laws Ann. tit. 32, §§ 3075-3086 (establishing procedures for actions against the Commonwealth), for the assertion that Hernandez, Rexach, and Jimenez, acting through attorneys Montalvo and Pagan, were vested with such legal authority. Enforcing this agreement would obviate the explicit statutory scheme established by Law 9 to settle personal capacity claims against public officials. In addition, the plaintiff has failed to alert us to any statute or regulation authorizing these particular public officials to waive the Commonwealth’s Eleventh Amendment immunity or to commit legislative funds to settle litigation. As a result, the district court cannot order the enforcement of the alleged agreement against the legislature. Vacated and Remanded. No costs. . The plaintiff did not name the Commonwealth as a defendant in its complaint, but rather sued the officeholders who preceded Rodriguez, Misla and Figueroa in office in their respective official capacities. See infra at 413. Because a suit against a public official in his or her official capacity is, in so far as it is relevant here, a suit against the underlying public entity, see infra at 415-416, we use the terms \"Commonwealth\" and \"official capacity defendants” interchangeably. . Negron also claimed that she had been dismissed in violation of the Due Process Clause and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. We affirmed the district court’s Fed.R.Civ.P. 12(b)(6) dismissal of these claims in Negron’s first appeal. See Negron-Gaztambide, 35 F.3d at 27. . The statute provides that: Every official, ex-official, employee or ex-employee of the Commonwealth of Puerto Rico who is sued for damages in his personal capacity, when the cause of action is based on alleged violations of the plaintiff's civil rights, due to acts or omissions committed in good faith, in the course of his employment and within the scope of his functions, may request the Commonwealth of Puerto Rico to provide him with legal representation, and to subsequently assume the payment" }, { "docid": "11663144", "title": "", "text": "authority. The unreasonableness of such an assertion is further demonstrated by a review of the Commonwealth Constitution, where no position in government is entitled to life tenure. See, e.g., NMI Const, art. II, §§ 2(b), 3(a) (general terms for senators and representatives are four years and two years, respectively); NMI Const, art. Ill, § 4 (governor’s term is four years); NMI Const, art. IV, § 5 (“Justices shall serve terms of eight (8) years and judges shall serve terms of six (6) years”). Thus, this common law rule of construction lends further support for our holding that, in the absence of statutory language to the contrary, the Special Assistant’s term expires with the expiration of the term of the appointing governor. IV ¶ 21 For the foregoing reasons, we hold that article IH, section 22 of the Commonwealth Constitution, which states that “[t]hc special assistant may be removed only for cause,\" means that the Special Assistant to the Governor for Women’s Affairs is protected against termination without cause only during the tern of the appointing governor. Because we reach this result on the first question, we decline to address the second certified question. SO ENTERED this 29th day of June, 2012. h/_ ALEXANDRO C. CASTRO Acting Chief Justice Jd_ JohnA.Manolona Associate Justice Jd_ Robert GNaraja Justice Pro Tem . Only “persons'' are subject to suit under § 1983, and the Commonwealth and its officials acting in their official capacity are not considered “persons” when sued for damages. Peter-Palican, 673 F.3d at 1017. Section 22 reads: (a) There is hereby established an Office of Special Assistant to the Governor for Women’s Affairs. The governor shall appoint a person, who is qualified by virtue of education and experience, to be the special assistant. The special assistant may be removed only for cause. (b) It is the responsibility and duty of the special assistant to formulate and implement a policy of affirmative action in the government and prívate sector to assist women achieve [sic] social, political and economic parity. The special assistant shall promote the interests of women, assist agencies of government and" }, { "docid": "11663142", "title": "", "text": "While the court did not elaborate on why such an inference of life tenure is impermissible, this reasoning is most likely based on the general presumption in the United States against interpreting constitutional and statutory provisions to create life tenures in the absence of explicit language to that effect. See De Castro v. Bd of Comm'rs of San Juan, 322 U.S. 451, 462 (1944) (recognizing a “strong presumption against the creation of a life tenure in a public office\" (citing Shurtleff v. United States, 189 U.S. 311, 316 (1903)). Regarding an argument that the absence of a term limit in a statute meant an appointee had life tenure, the Supreme Court in Shurtleff noted that: We think it quite inadmissible to attribute an intention on the part of Congress to make such an extraordinary change in the usual rule governing the tenure of office... without stating such intention in plain and explicit language, instead of leaving it to be implied from doubtful inferences. Shurtleff, 189 U.S. at 316. ¶ 19 Peter-Palican argues that the foregoing cases are distinguishable because they concerned positions created by statute instead of by constitutional provision. Peter-Palican Opening Br. at 10. She claims that we should rely on Opinion of the Justices of the Supreme Judicial Court Given Under the Provision of Section 3 ofArticle VI Of the Constitution, 343 A.2d 196,203 (Me. 1975), which held that M[w]hen the Constitution fixes the tenure of a civil office, it is beyond the power of the Legislature to affect the tenure.” However, this opinion is distinguishable and irrelevant to the certified question before us since the Commonwealth Constitution does not conclusively fix the tenure of the Speciat Assistant ¶ 20 Like the holdover deputy public auditor in Opinion of the Justices (Mass.), Peter-Palican argues that the absence of a term of employment means that she may continue as Special Assistant subject only to removal for cause. It is difficult to believe that the delegates at the Second Constitutional Convention would have made the Special Assistant a position with life tenure without doing so through an express grant of" }, { "docid": "14423235", "title": "", "text": "Amendment in violation of 42 U.S.C. § 1983, (3) reprisal for reporting suspected violations of Kentucky law in violation of Ky.Rev.Stat. Ann. § 61.102, (4) demotion without just cause in violation of Ky.Rev.Stat.Ann. § 18A.095, and (6) wrongful discharge. Williams sought restoration to her position as Field Office Manager of the Winchester DES office, expungement from her personnel record of all references to her reprimand and demotion, compensatory and punitive damages, attorney’s fees, and a declaratory judgment that defendants violated her rights under federal and state law. Defendants moved for summary judgment arguing that the Eleventh Amendment barred Williams’ claims and that the individual defendants were entitled to qualified immunity on the federal claims. Williams moved for partial summary judgment on her due process claim. On January 22, 1993, the district court issued a Memorandum Opinion and Order and Judgment, in which the court (1) dismissed all claims against the Commonwealth of Kentucky and the Cabinet for Human Resources and the claims for monetary relief against the defendant state officials sued in their official capacities because these claims were barred by the Eleventh Amendment, (2) held that the Eleventh Amendment does not bar claims for injunctive relief against the state officials sued in their official capacities or any claims against the state officials sued in their individual capacities, (3) held that defendants were not entitled to qualified immunity on the federal claims, and (4) granted partial summary judgment to Williams on her due process claim. The district court, pursuant to Federal Rule of Civil Procedure 54(b), stated that there was no just reason for delay and that its judgment was final and appealable. The district court determined that defendants were not entitled to qualified immunity on the due process claim because it held that Cleveland Board of Education v. Loudermill, “470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), clearly established that a tenured state employee must be given notice and hearing before being demoted, even though Loudermill involved a termination of an employee rather than a demotion. The district court granted partial summary judgment to Williams on her" }, { "docid": "11663123", "title": "", "text": "Peter-Palican received a letter from Lieutenant Governor Timothy P. Villagomez informing her that her term as Special Assistant ended with Babauta’s term and that “continuing to occupy the office of the Special Assistant for Women’s Affairs is contrary to Commonwealth law and custom ... Peter-Palican Excerpts of Record (“P-P ER”) at 10. The letter noted that the “Notification of Personnel Action” Peter-Palican received from the Commonwealth upon her appointment purported to establish a four-year teim of employment, which would have expired in April 2006. However, Villagomez’s letter went on to say “(i]t is not known why these documents seemingly contain a fixed term for your appointment, but the ministerial actions of those responsible for completing the paperwork necessary to effectuate your appointment cannot and do not change the legal character of your appointment (as one without a fixed term].” Id. In response to the letter from Villagomez, Peter-Palican sent a letter to the Governor in which she noted that section 22 made the Special Assistant a position that can only be removed for cause and that the Commonwealth’s rationale did not constitute cause for termination. Peter-Palican ultimately vacated her office in April 2006 after her efforts to resolve the issue with the Commonwealth failed. ¶ 4 After vacating her office, Peter-Palican filed an action against the Commonwealth in the United States District Court for the District of the Northern Mariana Islands (“District Court”) alleging violations of 42 U.S.C. § 1983. The District Court granted Peter-Palican’s motion for partial summary judgment, holding that section 22 protected Peter-Palican’s position even after the end of the term of her appointing governor absent good cause for removal. After an interlocutory appeal of the decision that is irrelevant to determination of the certified question, the District Court held that Peter-Palican’s removal violated the Due Process Clause of fríe Fourteenth Amendment to the United States Constitution. It also held that section 874A of the Restatement (Second) of Torts entitled Peter-Palican to recover damages from the Commonwealth for its violation of the Commonwealth Constitution and awarded Peter-Palican $216,000 in damages. The Commonwealth appealed the District Court’s decision" }, { "docid": "11663121", "title": "", "text": "STATES COURT OF APPEALS, NINTH CIRCUIT NO. 10-17153 D.C. NO. 1:07-cv-00022, District of the Northern Mariana Islands Cite as; 2012 MP 7 Decided June 29,2012 Douglas F. Cushnie, Saipan, MP, for Plaintiff-Appellee. Charles Brasington and Gilbert Bimbrich, Office of the Attorney General,1 Saipan, MP, for Defendants-Appellants. BEFORE: Alexandro C. Castro, Acting Chief Justice; JOHN A. MANGLONA, Associate Justice; ROBERT C. NARAJA, Justice Pro Tem. Castro, j.: ¶ 1 On March 12, 2012, the United States Court of Appeals for the Ninth Circuit certified the following two questions for resolution, by this Court: 1. Does Article III, section 22 of the Commonwealth Constitution, which states that “[fjhe Special Assistant may be removed only for cause,” mean that the Special Assistant may never be removed from that position without cause — even beyond the term of the appointing governor — or does it mean that the Special Assistant is protected against termination without cause only during the term of the appointing governor? 2. If the answer to the above question is that Article W, section 22 of the Commonwealth Constitution means the Special Assistant may never be removed for cause even beyond the term of the appointing governor, does Commonwealth taw imply a private right of action for monetary damages against the Commonwealth or its officials for violation of that section? Peter-Palican v. Commonwealth, 673 F.3d 1013, 1014 (9th Cir.2012). ¶2 For the reasons stated herein, we hold that article III, section 22 of the Commonwealth Constitution (“section 22”) , which stales that “[t]he special assistant may be removed only for cause,” means that the Special Assistant to the Governor for Women’s Affairs (\"Special Assistant”) is protected against termination without cause only during the term of the appointing governor. Because we reach this result on the first question, we decline to address the second certified question. I ¶ 3 Former Governor Juan N. Babauta appointed Plaintiff-Appellee Emerenciana Peter-Palican (“Peter-Palican”) as Special Assistant in April 2002. Before Peter-Palican’s appointment, each previous Special Assistant resigned at or before the end of the term of the appointing governor. In February 2006, under a new administration," }, { "docid": "3078191", "title": "", "text": "Dr. Meiners’s discrimination complaints. Dr. Meiners therefore failed to establish a prima facie case, and the district court properly granted summary judgment to the defendants on this claim. III. Due Process Claim Dr. Meiners’s final claim is a § 1983 action against Chancellor Hemen-way and Provost Shulenburger, in their official capacities. Dr. Meiners asserts that the two officials deprived her of her property interest in her tenured position at the University without due process. Before the district court, Dr. Meiners sought remedies of back pay, monetary damages, declaratory relief, and an injunction ordering her reinstatement as a tenured faculty member. As the district court correctly held, the claims for back pay, monetary damages, and retrospective declaratory relief are barred by the Eleventh Amendment. Meiners, 239 F.Supp.2d at 1197-98. However, as the district court noted, the Eleventh Amendment does not prohibit a suit in federal court to enjoin prospectively a state official from violating federal law. Id. (citing Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). Reinstatement of employment is a form of prospective equitable relief that is within the doctrine of Ex parte Young. Doe v. Laurrence Liv- ermore Nat. Lab., 131 F.3d 836, 839-41 (9th Cir.1997); Elliott v. Hinds, 786 F.2d 298, 302 (7th Cir.1986). Therefore, Dr. Meiners’s claim under ■ § 1983 for reinstatement is not barred by the Eleventh Amendment, and we consider it on the merits. In order to prevail on her procedural due process claim, Dr. Meiners must show that she possessed a protected property interest in continued employment at the University. Hatfield v. Bd. of County Comm’rs, 52 F.3d 858, 862-63 (10th Cir. 1995). The district court determined that, under Kansas law, Dr. Meiners could not have had a protected property interest in continued employment at the University unless she was entitled to tenure. Meiners, 239 F.Supp.2d at 1198-99. The parties also agree on this point. The key question, then, is whether Dr. Meiners was, as a matter of Kansas contract law, legally entitled to tenure under her appointment contract. The source of Dr. Meiners’s claim of entitlement" }, { "docid": "11663132", "title": "", "text": "cause” employment and life tenure. “For cause” employment relates to the level of justification required to terminote an employee while life tenure relates to the length of a term of employment. The difference between “for cause” employment and life tenure is apparent from the fret that positions with explicit terms are sometimes also afforded the protection of “for cause” employment. For example, the Commonwealth’s Public Auditor has a term of six years, 1 CMC § 2302(b), and may onty be removed for cause, NMI Const, art. Ill, § 12. See also NM1 Const, art. XX, § 1 (Civil Service Commission members “shall serve a term of six years... [and] may be removed only for cause.”). Because of the difference between these two concepts, we find that the amendment to delegate proposal 121-85 is insufficient, standing alone, to demonstrate that the delegates intended the Special Assistant position to have life tenure. ¶ 11 Peter-Palican also relies on a discussion from the Second Constitutional Convention regarding another (ultimately unsuccessful) proposed amendment to delegate proposal 121-85 that would have placed the Special Assistant within the Commonwealth Department of Community and Cultural Affairs. Peter-Palican Reply Br. at 1-4. Much of the discussion related to this proposed amendment concerned the desire to depoliticize the Special Assistant position and insulate that position from political influence. E.g., Commonwealth ER at 313-14 (lT think it is very important to insulate this office from politics.”). This discussion does not support Peter-Palican’s argument. The proposed amendment’s method of insulating the position from politics was the placement of the position within the Department of Community and Cultural Affairs. However, the discussion related to insulation from politics associated with this proposed amendment is irrelevant to the language of section 22 since the delegates did not ultimately adopt the proposed amendment that would have placed the Special Assistant within the Department of Community and Cultural Affairs. ¶ 12 In sum, we find no conclusive evidence in the foregoing legislative history to decide the question before us. The legislative histoiy does not support Peter-Palican’s assertion that the Special Assistant position is one of life" }, { "docid": "11663116", "title": "", "text": "I The relevant facts of this case are set forth in our certification order, Peter-Palican v. Government of Northern Mariana Islands, 673 F.3d 1013 (9th Cir.2012). In brief, Peter-Palican was appointed as Special Assistant to the Governor for Women’s Affairs in April 2002 by then-Governor Juan Babauta. Id. at 1015. Governor Fitial defeated Babauta in the 2005 gubernatorial race, and shortly thereafter Acting Governor Timothy Villagomez informed Peter-Palican that her employment had ended upon the change in administration and asked her to leave; there was no allegation that Peter-Palican had done anything wrong or had engaged in conduct constituting “cause” for her termination. Id. II Article III, section 22 of the Commonwealth Constitution describes the position of the Special Assistant for Women’s Affairs and states, “The special assistant may be removed only for cause.” N. Mar. I. Const., art. Ill, § 22 (“section 22”). Peter-Palican sued the Commonwealth under 42 U.S.C. § 1983, arguing that section 22 protected her against termination without cause even by a new administration. Peter-Palican also asserted claims of retaliation, breach of contract, and estoppel. After granting partial summary judgment to Peter-Palican and presiding over a bench trial, the district court entered judgment in favor of Peter-Palican, holding that (1) under section 22, Peter-Palican had a property interest in continued employment even beyond the term of the governor who appointed her, and (2) her termination without cause therefore violated the Due Process Clause. Peter-Palican, 673 F.3d at 1017. The district court ordered the Commonwealth to reinstate Peter-Palican “to a Commonwealth government position at a salary equal to or greater than that she had as Special Assistant for Women’s Affairs.” Id. Recognizing that Peter-Palican could not recover monetary damages under 42 U.S.C. § 1983, the district court also implied a private right of action against the Commonwealth for violation of section 22 — a claim Peter-Palican had not pleaded — and awarded her approximately $216,000 in damages. Id. The district court did not rule on Peter-Palican’s other claims. The Commonwealth appealed. On March 12, 2012, we certified to the Supreme Court of the Commonwealth of the Northern" }, { "docid": "11663120", "title": "", "text": "longer possessed a property interest in continued employment once the new governor took office, her due process claims fail. And because the Commonwealth did not violate section 22 or the Due Process Clause by terminating her without cause, any implied constitutional tort claim fails as well. Therefore, we vacate the district court’s judgment in favor of Peter-Palican, including its award of damages and injunctive relief. Because the district court did not address Peter-Palican’s retaliation, breach of contract, or estoppel claims, we remand for further proceedings consistent with this opinion as well as that of the Commonwealth Supreme Court, set forth in the Appendix. VACATED and REMANDED. APPENDIX E-WL1ÍD CNMI SUPREME COURT E-filcd: Jul 23 2012 2:12PM ClerkReview; Jul 23 2012 2:13PM Filing ID; 45478306 Ca« No.: 2012-SCC-OOIO-CQU Jennifer Dockter IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS EMERENCIANA PETER-PALICAN, Plaintiff-Appellee, GOVERNMENT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS; BENIGNO R. FILIAL, Governor of the Commonwealth of the Northern Mariana Islands, in bis official capacity, Defendants-Appellants. SUPREME COURT NO. 2012-SCC-0010-CQU UNITED STATES COURT OF APPEALS, NINTH CIRCUIT NO. 10-17153 D.C. NO. 1:07-cv-00022, District of the Northern Mariana Islands Cite as; 2012 MP 7 Decided June 29,2012 Douglas F. Cushnie, Saipan, MP, for Plaintiff-Appellee. Charles Brasington and Gilbert Bimbrich, Office of the Attorney General,1 Saipan, MP, for Defendants-Appellants. BEFORE: Alexandro C. Castro, Acting Chief Justice; JOHN A. MANGLONA, Associate Justice; ROBERT C. NARAJA, Justice Pro Tem. Castro, j.: ¶ 1 On March 12, 2012, the United States Court of Appeals for the Ninth Circuit certified the following two questions for resolution, by this Court: 1. Does Article III, section 22 of the Commonwealth Constitution, which states that “[fjhe Special Assistant may be removed only for cause,” mean that the Special Assistant may never be removed from that position without cause — even beyond the term of the appointing governor — or does it mean that the Special Assistant is protected against termination without cause only during the term of the appointing governor? 2. If the answer to the above question is that Article W, section 22 of" }, { "docid": "11663143", "title": "", "text": "cases are distinguishable because they concerned positions created by statute instead of by constitutional provision. Peter-Palican Opening Br. at 10. She claims that we should rely on Opinion of the Justices of the Supreme Judicial Court Given Under the Provision of Section 3 ofArticle VI Of the Constitution, 343 A.2d 196,203 (Me. 1975), which held that M[w]hen the Constitution fixes the tenure of a civil office, it is beyond the power of the Legislature to affect the tenure.” However, this opinion is distinguishable and irrelevant to the certified question before us since the Commonwealth Constitution does not conclusively fix the tenure of the Speciat Assistant ¶ 20 Like the holdover deputy public auditor in Opinion of the Justices (Mass.), Peter-Palican argues that the absence of a term of employment means that she may continue as Special Assistant subject only to removal for cause. It is difficult to believe that the delegates at the Second Constitutional Convention would have made the Special Assistant a position with life tenure without doing so through an express grant of authority. The unreasonableness of such an assertion is further demonstrated by a review of the Commonwealth Constitution, where no position in government is entitled to life tenure. See, e.g., NMI Const, art. II, §§ 2(b), 3(a) (general terms for senators and representatives are four years and two years, respectively); NMI Const, art. Ill, § 4 (governor’s term is four years); NMI Const, art. IV, § 5 (“Justices shall serve terms of eight (8) years and judges shall serve terms of six (6) years”). Thus, this common law rule of construction lends further support for our holding that, in the absence of statutory language to the contrary, the Special Assistant’s term expires with the expiration of the term of the appointing governor. IV ¶ 21 For the foregoing reasons, we hold that article IH, section 22 of the Commonwealth Constitution, which states that “[t]hc special assistant may be removed only for cause,\" means that the Special Assistant to the Governor for Women’s Affairs is protected against termination without cause only during the tern of the appointing" }, { "docid": "23011335", "title": "", "text": "of the State’ for Eleventh Amendment purposes” are not “persons” under § 1983. Moreover, Will clarified that “a suit against a state official in his or her official capacity .... is no different from a suit against the State itself.” Id. at 71, 109 S.Ct. 2304. We have held that a state university is an arm of the state entitled to Eleventh Amendment immunity. See, e.g., Armstrong v. Meyers, 964 F.2d 948, 949-50 (9th Cir.1992) (per curiam). Therefore, state officials sued in their official capacities, including university officials, are not “persons” within the meaning of § 1983 and are therefore generally entitled to Eleventh Amendment immunity. Will recognized one vital exception to this general rule: When sued for prospective injunctive relief, a state official in his official capacity is considered a “person” for § 1983 purposes. Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304 (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’ ” (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985))). This exception recognizes the doctrine of Ex parte Yoimg, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that a suit for prospective injunctive relief provides a narrow, but well-established, exception to Eleventh Amendment immunity. See Rounds v. Or. State Bd. of Higher Educ., 166 F.3d 1032, 1036 (9th Cir.1999) (“Ex Parte Young provided a narrow exception to Eleventh Amendment immunity for certain suits seeking declaratory and injunc-tive relief against unconstitutional actions taken by state officers in their official capacities.”); Doe v. Larvrence Livermore Nat’l Lab., 131 F.3d 836, 840 (9th Cir.1997) (“[T]he Eleventh Amendment allows only prospective injunctive relief to prevent an ongoing violation of federal law.”). Flint seeks declaratory and injunc-tive relief as related to past violations, namely, ASUM’s allegedly unconstitutional infringement of his right to freedom of speech. However, as in Doe v. Lawrence Livermore National Laboratory, the relief Flint seeks is not so limited." }, { "docid": "11663115", "title": "", "text": "OPINION TROTT, Circuit Judge: The Commonwealth of the Northern Mariana Islands and Governor Benigno R. Fitial (collectively, “the Commonwealth”) appeal the district court’s judgment in favor of plaintiff Emerenciana Peter-Palican. Peter-Palican alleges that she was terminated without cause from her position as Special Assistant to the Governor for Women’s Affairs in violation of Article III, section 22 of the Commonwealth Constitution. The district court agreed, determining that Peter-Palican had a property interest in continued employment as the Special Assistant and was terminated without due process by the incoming governor. Because the resolution of this case requires an interpretation of the Commonwealth Constitution, we certified questions to the Commonwealth Supreme Court and have now received its answer. Based on the meaning of Article III, section 22 as determined by the final arbiter of Commonwealth law, we hold that Peter-Palican did not have a protected interest in continued employment beyond the term of the governor who appointed her. Therefore, her termination without cause did not violate the Due Process Clause, and the district court’s judgment cannot stand. I The relevant facts of this case are set forth in our certification order, Peter-Palican v. Government of Northern Mariana Islands, 673 F.3d 1013 (9th Cir.2012). In brief, Peter-Palican was appointed as Special Assistant to the Governor for Women’s Affairs in April 2002 by then-Governor Juan Babauta. Id. at 1015. Governor Fitial defeated Babauta in the 2005 gubernatorial race, and shortly thereafter Acting Governor Timothy Villagomez informed Peter-Palican that her employment had ended upon the change in administration and asked her to leave; there was no allegation that Peter-Palican had done anything wrong or had engaged in conduct constituting “cause” for her termination. Id. II Article III, section 22 of the Commonwealth Constitution describes the position of the Special Assistant for Women’s Affairs and states, “The special assistant may be removed only for cause.” N. Mar. I. Const., art. Ill, § 22 (“section 22”). Peter-Palican sued the Commonwealth under 42 U.S.C. § 1983, arguing that section 22 protected her against termination without cause even by a new administration. Peter-Palican also asserted claims of retaliation, breach" }, { "docid": "11663145", "title": "", "text": "governor. Because we reach this result on the first question, we decline to address the second certified question. SO ENTERED this 29th day of June, 2012. h/_ ALEXANDRO C. CASTRO Acting Chief Justice Jd_ JohnA.Manolona Associate Justice Jd_ Robert GNaraja Justice Pro Tem . Only “persons'' are subject to suit under § 1983, and the Commonwealth and its officials acting in their official capacity are not considered “persons” when sued for damages. Peter-Palican, 673 F.3d at 1017. Section 22 reads: (a) There is hereby established an Office of Special Assistant to the Governor for Women’s Affairs. The governor shall appoint a person, who is qualified by virtue of education and experience, to be the special assistant. The special assistant may be removed only for cause. (b) It is the responsibility and duty of the special assistant to formulate and implement a policy of affirmative action in the government and prívate sector to assist women achieve [sic] social, political and economic parity. The special assistant shall promote the interests of women, assist agencies of government and private organizations to plan and implement programs and services for women, monitor compliance of laws and regulations by govémment agencies and private organizations, organize community education strategies regarding the roles of women, and recommend to the governor and the legislature for consideration legislation of benefit to women. (c) The special assistant may be authorized to hire staff and shall promulgate rules and regulations in carrying out the responsibilities and duties of the office. (d) The governor shall include in the budget of the executive branch the funding necessary to fully implement the provisions of this section. NMI Const, art. Ill, § 22. The Court deemed oral argument unnecessary in this matter. NMI Sup. Ct. Rule 13(cX4). This factual background relies upon the factual background provided by the United States Court of Appeals for the Nioth Circuit in Peter-Palican, 673 F.3d at 1014-17. As we noted in J.C. Sabian Rock Quarry, Inc. v. Department of Public Lands, 2012 MP 2 (Slip Opinion March 30, 2012), “pursuant to Commonwealth Supreme Court Rule 30, the Appendix to the" }, { "docid": "11663122", "title": "", "text": "the Commonwealth Constitution means the Special Assistant may never be removed for cause even beyond the term of the appointing governor, does Commonwealth taw imply a private right of action for monetary damages against the Commonwealth or its officials for violation of that section? Peter-Palican v. Commonwealth, 673 F.3d 1013, 1014 (9th Cir.2012). ¶2 For the reasons stated herein, we hold that article III, section 22 of the Commonwealth Constitution (“section 22”) , which stales that “[t]he special assistant may be removed only for cause,” means that the Special Assistant to the Governor for Women’s Affairs (\"Special Assistant”) is protected against termination without cause only during the term of the appointing governor. Because we reach this result on the first question, we decline to address the second certified question. I ¶ 3 Former Governor Juan N. Babauta appointed Plaintiff-Appellee Emerenciana Peter-Palican (“Peter-Palican”) as Special Assistant in April 2002. Before Peter-Palican’s appointment, each previous Special Assistant resigned at or before the end of the term of the appointing governor. In February 2006, under a new administration, Peter-Palican received a letter from Lieutenant Governor Timothy P. Villagomez informing her that her term as Special Assistant ended with Babauta’s term and that “continuing to occupy the office of the Special Assistant for Women’s Affairs is contrary to Commonwealth law and custom ... Peter-Palican Excerpts of Record (“P-P ER”) at 10. The letter noted that the “Notification of Personnel Action” Peter-Palican received from the Commonwealth upon her appointment purported to establish a four-year teim of employment, which would have expired in April 2006. However, Villagomez’s letter went on to say “(i]t is not known why these documents seemingly contain a fixed term for your appointment, but the ministerial actions of those responsible for completing the paperwork necessary to effectuate your appointment cannot and do not change the legal character of your appointment (as one without a fixed term].” Id. In response to the letter from Villagomez, Peter-Palican sent a letter to the Governor in which she noted that section 22 made the Special Assistant a position that can only be removed for cause and" }, { "docid": "11663124", "title": "", "text": "that the Commonwealth’s rationale did not constitute cause for termination. Peter-Palican ultimately vacated her office in April 2006 after her efforts to resolve the issue with the Commonwealth failed. ¶ 4 After vacating her office, Peter-Palican filed an action against the Commonwealth in the United States District Court for the District of the Northern Mariana Islands (“District Court”) alleging violations of 42 U.S.C. § 1983. The District Court granted Peter-Palican’s motion for partial summary judgment, holding that section 22 protected Peter-Palican’s position even after the end of the term of her appointing governor absent good cause for removal. After an interlocutory appeal of the decision that is irrelevant to determination of the certified question, the District Court held that Peter-Palican’s removal violated the Due Process Clause of fríe Fourteenth Amendment to the United States Constitution. It also held that section 874A of the Restatement (Second) of Torts entitled Peter-Palican to recover damages from the Commonwealth for its violation of the Commonwealth Constitution and awarded Peter-Palican $216,000 in damages. The Commonwealth appealed the District Court’s decision and the United States Court of Appeals for the Ninth Circuit deferred submission of the appeal pending this Court’s resolution of the certified questions presently before us. II ¶ 5 Federal courts may certify questions of Commonwealth law to this Court where: (1) the question may be determinative in the proceedings before the federal court; and (2) we have no controlling precedent on the question. NMI Sup. Ct. R. 13(a). The Ninth Circuit’s order certifying questions to this Court stated that there is “no controlling precedent in the decisions of the Commonwealth Supreme Court” as to the questions and that answers to the questions “may be determinative of this appeal... Peter-Palican, 673 F.3d at 1014. We find that the two necessary elements are satisfied here. III ¶ 6 “A basic principle of constitutional construction is that language must be given its plain meaning.” N. Marians Coll. v. Civil Serv. Comm'n, 2007 MP 8 ¶ 9. We “apply the plain, commonly understood meaning of constitutional language 'unless there is evidence that a contrary meaning was intended.”’" }, { "docid": "11663119", "title": "", "text": "certified question as follows: [W]e hold that article III, section 22 of the Commonwealth Constitution ... which states that “[t]he special assistant may be removed only for cause,” means that the Special Assistant to the Governor for Women’s Affairs ... is protected against termination without cause only during the term of the appointing governor. Id. at ¶ 2. Because the answer to the first question is dispositive of the issues in this appeal, the Supreme Court declined to address the second certified question. Id. Ill The Commonwealth Supreme Court’s authoritative interpretation of Commonwealth law conclusively establishes that Peter-Palican did not have a property interest in continued employment once the new governor took office. Therefore, although she was protected from termination without cause during the term of Governor Babauta — the governor who appointed her — incoming Governor Fitial and Acting Governor Villagomez were constitutionally allowed to terminate her without cause. The Commonwealth Supreme Court’s prompt decision is attached to this opinion as the Appendix, and we adopt its reasoning and its conclusions. Because PeterPalican no longer possessed a property interest in continued employment once the new governor took office, her due process claims fail. And because the Commonwealth did not violate section 22 or the Due Process Clause by terminating her without cause, any implied constitutional tort claim fails as well. Therefore, we vacate the district court’s judgment in favor of Peter-Palican, including its award of damages and injunctive relief. Because the district court did not address Peter-Palican’s retaliation, breach of contract, or estoppel claims, we remand for further proceedings consistent with this opinion as well as that of the Commonwealth Supreme Court, set forth in the Appendix. VACATED and REMANDED. APPENDIX E-WL1ÍD CNMI SUPREME COURT E-filcd: Jul 23 2012 2:12PM ClerkReview; Jul 23 2012 2:13PM Filing ID; 45478306 Ca« No.: 2012-SCC-OOIO-CQU Jennifer Dockter IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS EMERENCIANA PETER-PALICAN, Plaintiff-Appellee, GOVERNMENT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS; BENIGNO R. FILIAL, Governor of the Commonwealth of the Northern Mariana Islands, in bis official capacity, Defendants-Appellants. SUPREME COURT NO. 2012-SCC-0010-CQU UNITED" }, { "docid": "11663118", "title": "", "text": "Mariana Islands the following questions: 1. Does Article III, section 22 of the Commonwealth Constitution, which states that “[t]he Special Assistant may be removed only for cause,” mean that the Special Assistant may never be removed from that position without cause — even beyond the term of the appointing governor — or does it mean that the Special Assistant is protected against termination without cause only during the term of the appointing governor? 2. If the answer to the above question is that Article III, section 22 of the Commonwealth Constitution means the Special Assistant may never be removed for cause even beyond the term of the appointing governor, does Commonwealth law imply a private right of action for monetary damages against the Commonwealth or its officials for violation of that section? Id. at 1014. The Supreme Court graciously accepted certification and, on June 29, 2012, issued its opinion in Peter-Palican v. Government of the Commonwealth of the Northern Mariana Islands, 2012 MP 7, 2012 WL 2564359 (N.Mar.1.2012). The Commonwealth Supreme Court answered the first certified question as follows: [W]e hold that article III, section 22 of the Commonwealth Constitution ... which states that “[t]he special assistant may be removed only for cause,” means that the Special Assistant to the Governor for Women’s Affairs ... is protected against termination without cause only during the term of the appointing governor. Id. at ¶ 2. Because the answer to the first question is dispositive of the issues in this appeal, the Supreme Court declined to address the second certified question. Id. Ill The Commonwealth Supreme Court’s authoritative interpretation of Commonwealth law conclusively establishes that Peter-Palican did not have a property interest in continued employment once the new governor took office. Therefore, although she was protected from termination without cause during the term of Governor Babauta — the governor who appointed her — incoming Governor Fitial and Acting Governor Villagomez were constitutionally allowed to terminate her without cause. The Commonwealth Supreme Court’s prompt decision is attached to this opinion as the Appendix, and we adopt its reasoning and its conclusions. Because PeterPalican no" }, { "docid": "14423234", "title": "", "text": "concluded that Williams should be terminated for insubordination and possible criminal conduct in her management of the Winchester office. Instead of accepting this recommendation, defendant Allen requested a demotion for Williams. On May 30,1991, Thompson and defendant Hodgkin hand delivered an eighteen-page letter from defendant McWilliams to Williams at the Georgetown DES office advising Williams of her demotion. The letter detailed the reasons for the demotion and concluded by advising Williams that as an employee with status in her position she was entitled to “appeal this action to the Personnel Board, within thirty (30) days after receipt of this notice.” J.A. 1027. Williams filed this action in the district court against the Commonwealth of Kentucky, the Cabinet for Human Resources, and various individual supervisors and administrators. The individuals were sued in both their individual and official capacities. The complaint consisted of five counts: (1) deprivation of employment rights without due process under the Fourteenth Amendment in violation of 42 U.S.C. § 1983, (2) deprivation of employment rights for exercising free speech rights under the First Amendment in violation of 42 U.S.C. § 1983, (3) reprisal for reporting suspected violations of Kentucky law in violation of Ky.Rev.Stat. Ann. § 61.102, (4) demotion without just cause in violation of Ky.Rev.Stat.Ann. § 18A.095, and (6) wrongful discharge. Williams sought restoration to her position as Field Office Manager of the Winchester DES office, expungement from her personnel record of all references to her reprimand and demotion, compensatory and punitive damages, attorney’s fees, and a declaratory judgment that defendants violated her rights under federal and state law. Defendants moved for summary judgment arguing that the Eleventh Amendment barred Williams’ claims and that the individual defendants were entitled to qualified immunity on the federal claims. Williams moved for partial summary judgment on her due process claim. On January 22, 1993, the district court issued a Memorandum Opinion and Order and Judgment, in which the court (1) dismissed all claims against the Commonwealth of Kentucky and the Cabinet for Human Resources and the claims for monetary relief against the defendant state officials sued in their official capacities" } ]

[ { "docid": "21187972", "title": "", "text": "of eliminating those who did not meet my requirements. As far as I was able you thirteen individuals were the most intelligent, the most educated and the most religious obtainable.” (Emphasis added.) Later, counsel for appellant stated: “ * * * And I see no basis in morality, in common sense and in my conception of law that could warrant an educated and religious minded jury — and the alternate — to find that the defendant was guilty of knowingly, wilfully and unlawfully violating this order.” (Emphasis added.) . United States v. Kravitz, supra, note 4, at 586. . Viereck v. United States, 318 U.S. 236, 248, 63 S.Ct. 561, 87 L.Ed. 734 (1943). . In his charge the District Court Judge stated: “So that I think you understand at this time, members of the jury, that you should dismiss from your minds whether or not the defendant was properly classified 1-0 [the conscientious objector classification] for during the course of his trial the defendant admitted that the classification 1-0 was proper and correct. You understand, according to the evidence in this case, that this defendant was conscientiously opposed to participation in war in any form and was therefore classified 1-0 by his local board.” . See United States v. Kravitz, supra note 4, at 586, in circumstances far more objectionable than here, where this court said: “ * * * To say that this remark would have a prejudicial effect on a jury which had listened throughout a long trial to the unfolding of the testimony is to attribute a stupidity and absence of common sense which is incredible in a federal jury. * * * ” . Appellant interrupted the summation at this point but only for the following interjection : “Mr. Elfenbein: Is that document in evidence ? “The Court: That is in evidence. “Mr. Elfenbein: Number 41.” . Defendant’s Exhibit 20. . “The Court: Now, unless there are some exceptions to the charge the jury may take the case. “Mr. Yauch (Assistant U.S. Attorney) : No exceptions, sir. “Mr. Elfenbein (Appellant’s counsel): One, your Honor. “" } ]

[ { "docid": "3056034", "title": "", "text": "the following comments: [Cjounsel [for defendants] suggest[] that when the government went out [to Grider’s prison to persuade him to testify], they sent their representatives, they’ve shaped the testimony of Mr. Grider as he testified. .... They failed to point out to you that when they went out, Officer Owen, seated in the courtroom was there. The same man that six years ago today lay on the ground wounded. He’s the man who went out there, and he talked to Grider, and they suggested his testimony had been shaped by the government. A few minutes later, in closing his remarks, the prosecutor stated: [T]he government would submit to you that it has proven its case beyond any reasonable doubt, all reasonable doubt, that six years ago today Officer Owen la,, there in the street wounded, and he sits before you today awaiting the truth, awaiting your verdict. Appellants’ counsel immediately moved for a mistrial on the grounds that these remarks were an inflammatory appeal to the jury’s passions. Viereck v. United States, 318 U.S. 236, 237, 247-48, 63 S.Ct. 561, 562, 566-567, 87 L.Ed. 734 (1943); Berger v. United States, 295 U.S. 78, 88-89, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). The trial judge denied the motion, but instructed the jury to disregard the remarks. Appellants claim that it was error to deny the motion for mistrial, that the judge’s instructions could not cure the harm done by the prosecutor, and that appellants’ resulting convictions thus violated their right to due process of law. We agree with the trial court that this last remark of the prosecutor was improper. We have held that prosecutors must avoid such comments given the “invisible cloak of credibility” that they wear “in virtue of their position,” Patriarca v. United States, 402 F.2d 314, 321 (1st Cir. 1968), cert. denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969). As the Supreme Court has pointed out, The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling" }, { "docid": "9681971", "title": "", "text": "business and Migdal was still a Post Office employee. The Government’s proof — sufficiency isn’t argued here — was that the Tepfers ultimately agreed to pay appellant $100,000, of which he received at least $44,500, for his assistance in obtaining and meeting for S. Tepfer & Sons the obligations of contracts worth several million dollars. In the Eastern District of New York the practice on closing argument is for the defense to open and the prosecution to close. Accordingly, we have examined the final arguments of both counsel to determine the extent, if any, to which the prosecution was provoked by the defense into making shorthand characterizations and insinuations that — unprovoked — -would be improper and prejudicial. See Viereck v. United States, 318 U.S. 236, 247-248, 63 S.Ct. 561, 87 L.Ed. 734 (1943); Berger v. United States, 295 U.S. 78, 88-89, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Hall v. United States, 419 F.2d 582 (5th Cir. 1969) (2-1 decision); cf. United States v. Isaza, 453 F.2d 1259 (2d Cir. 1972). At the outset of defense counsel’s summation, he referred to the Government witnesses as follows: Were any of them prosecuted? No, of course not. They all got away and they decided that they would get together, and the real conspiracy was an agreement to throw Phil Benter to the wolves, these four crooks. This was the real agreement. Counsel also referred to them as “these evil people” and said “. . . these crooks who testified for the Government were not good liars and they tripped themselves up here and there.” He went on to say that the Government was “stuck with these four crooks and they have founded their case on the weak, shifting sands of these four.” The structure of his argument was to analyze the story of each Government witness. Chervin was said not to have remembered “the story that they cooked up” and to be “ [a] man who admits that he is a crook.” Leo and Barry Tepfer were said to be “poor liars.” Leo was characterized as “this evil man [who] takes" }, { "docid": "12014249", "title": "", "text": "presented, the impropriety assumes greater significance. Accordingly, it is better that we issue our admonition in this simple case than face a charge of greater prosecutorial impropriety in a difficult case. II. Although the prosecutor’s comments were ill-conceived, reversal is not warranted here if we view his conduct, as we must, in the context of the entire trial. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239, 242, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v. Berger, 295 U.S. 78, 85, 89, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Benter, 457 F.2d 1174, 1178 (2d Cir.) cert, denied 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 82 (1972); United States v. Grunberger, 431 F.2d 1062, 1069 (2d Cir. 1970). Proof of guilt was clear and convincing. The verdict was ensured by the defendant’s words, and not the prosecutor’s. Although we are affirming the conviction, we seek by our admonition to remind the federal prosecutor once again of the delicate role he plays. When an Assistant United States Attorney appears in court, and especially in a trial before a jury, he represents and personifies the government. He must prosecute cases diligently and vigorously. The public expects no less. But, he must also perform his task with dignity and self-discipline. The public deserves no less. We recall Justice Black’s articulation of the prosecutor’s dilemma: A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows. Viereck v. United States, 318 U.S. 236, 253, 63 S.Ct. 561, 569, 87 L.Ed. 734 (1943) (Black, J., dissenting). The exceedingly fine line which distinguishes permissible advocacy from improper excess is to be drawn within the concrete terrain of specific cases. See ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function 127 (1971). Accordingly, we do not intend to formulate per se rules or declare that certain words will automatically trigger mistrials" }, { "docid": "21564789", "title": "", "text": "proven in this Court. I wanted to tell you that. If there was any contrary suggestion, I specifically instruct you, you are not to consider that and may not consider an argument along that line. (Tr. Y at 708-09). It is often stated that an attorney representing the United States is obligated to try a case fairly and, “while he may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); see United States v. O’Connell, 841 F.2d 1408, 1428 (8th Cir.1988) (“the prosecutor’s special duty as a government agent is not to convict, but to secure justice”), cert. denied, — U.S. -, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989). The Supreme Court has cautioned the government to abstain from arguments which are “undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury.” Berger, 295 U.S. at 85, 55 S.Ct. at 633. The grant or denial of a mistrial may be reversed only upon a showing of abuse of discretion. O’Connell, 841 F.2d at 1427. On appeal, we conduct a two-part inquiry concerning the alleged prosecutorial misconduct: “[W]e consider whether the remarks were in fact improper and, if so, whether they prejudicially affected the defendants’ substantial rights so as to deprive them of a fair trial.” Id. When we apply this analysis here, we are compelled to conclude that the prosecutorial remarks were indeed improper, but not to an extent unfairly prejudicial to the appellants. The government contends that its rebuttal argument was merely a fair reply to the inconsistent defense theories raised by defense counsel in their summations. See, e.g., United States v. Young, 470 U.S. 1, 6-14, 105 S.Ct. 1038, 1041-45, 84 L.Ed.2d 1 (1985) (discussing the “invited reply” doctrine). Certainly the government has a right to respond to defense arguments. See United States v. Grey Bear, 883 F.2d 1382, 1390-92 (8th Cir.1989); United States v. Scott, 660 F.2d 1145, 1168-70 (7th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982). We are" }, { "docid": "14332204", "title": "", "text": "into the case by the defendant, and it was in reaction to this implication of wrongdoing that the prosecutor made his unfortunate response. The district court thought that the remarks of the prosecutor following the defense objection and the trial court’s ruling, although ostensibly an apology, constituted an artful and successful maneuver to restate the objectionable comments. However, we do not attribute such an intention to the prosecutor nor do we believe that the apology was received as anything other than that by the jury or trial judge. In our view the challenged remarks are not such a reflection on the conduct of counsel as to amount to an attempt to penalize the defendant for exercising his right to retain a lawyer. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The prosecutor’s statements were directed more to excuse his own alleged dereliction on the ground that the defendant’s lawyer did the same thing, i. e., there was nothing more improper in the prosecutor speaking to witness Pavia than was the action of defense counsel in consulting with his client. There is an obvious difference between the tenor of such a remark and that in United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 154, 38 L.Ed.2d 104 (1973), where it was implied that the act of retaining counsel was evidence of guilt. In United States v. Lawson, 337 F.2d 800, 810 (3d Cir.), cert. denied, 380 U.S. 919, 85 S.Ct. 913, 13 L.Ed.2d 804 (1965), we were confronted with a remark somewhat akin to the one at issue. In that case, we said: “The appellant also contends that the remark ‘where do you think he got that?’ was a ‘reprehensible innuendo that the defendant’s testimony was prompted by his lawyer.’ The question was unclear and at best rhetorical. It had, however, no consequences prejudicial to appellant.” Moreover, in his summation, defense counsel intimated that the defendant’s act in not retaining a lawyer immediately was proof of innocence. He said: “The Miranda warnings, are very, very" }, { "docid": "6977382", "title": "", "text": "As noted, the trial judge had little doubt about the argument’s impact when he admonished the prosecutor at sidebar to “stay away from the area of white/black because I don’t think that’s in the case.” The prosecutor’s “sexual release” argument was also improper. The comment implied that Moore was guilty of raping M.A. because he was unable to have sexual intercourse with his wife. While improper, we believe it is the kind of remark usually remedied by appropriate curative instructions. The trial judge immediately cautioned the jury that there was no eviden-tiary basis for this inference. We believe the trial judge effectively remedied any possible prejudice stemming from the remark. As noted, the prosecutor commented at the end of his summation that, “if you don’t believe ... [M.A.] and you think she’s lying, then you’ve probably perpetrated a worse assault on her.” This was an improper appeal to the jurors’ passions. As the Supreme Court held in Berger v. United States, 295 U.S. 78, 85-88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is ... compelling.... He may prosecute with earnestness and vigor — indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. M.A. suffered a brutal attack and rape. By asking the jury to factor their understandable sympathy for the victim of this horrible crime into deciding Moore’s guilt or innocence, the prosecutor made an impermissible request to decide guilt on something other than the evidence. Courts applying Supreme Court precedent have found that similar appeals for jurors to decide cases based on passion and emotion were improper. See supra note 8. But other courts applying Supreme Court precedent have recognized that improper appeals to passion can be cured. Id. As noted, the trial court here instructed the jury, I want to tell you I’m going" }, { "docid": "6927270", "title": "", "text": "may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). For the third time in the last six months, we find ourselves in the regrettable position of vacating a conviction because a United States Attorney has failed to honor sufficiently these precepts. See Udechukwu, 11 F.3d at 1106; Arrieta-Agressot, 3 F.3d at 530; see also United States v. Moreno, 991 F.2d 943, 949-50 (1st Cir.) (Torruella, J., dissenting) (arguing, inter alia, that the prosecutorial misconduct in that case warranted reversal of defendant’s conviction), cert. denied, — U.S. -, 114 S.Ct. 457, 126 L.Ed.2d 389 (1993). Vacated and remanded. . Additionally, we note that the improper arguments challenged on appeal are by no means the only inappropriate comments made to the jury by the prosecution during closing arguments. By way of illustration, we offer the following passage where the prosecutor described his view of the \"roles” played by the judge, jury, and, especially, defense counsel in a criminal trial: [PROSECUTOR]: We all play roles in this trial. You have seen what the Judge does and ruled on the law [sic]. As a jury, you serve a role, a function in this case too, you represent the people of the United States, the citizens of the State of Rhode Island. By your verdict you will speak for those citizens. By your verdict you will determine— [DEFENSE COUNSEL]: I object to that. THE COURT: Just a moment. The juty will make the decision among themselves based on the instructions and the evidence they've heard. [PROSECUTOR]: Yes, your honor. You are fact finders and in order to find the facts one of the things you have to do is to decide which of the facts are true. You will have to assess the credibility of the witnesses. Some prosecutors get up and say that" }, { "docid": "22806836", "title": "", "text": "146-47 (D.C.Cir. 1969); Hall v. United States, 419 F.2d 582, 585 (5th Cir. 1969). Such a suggestion has a special potential for prejudice, moreover, when it is made by a prosecutor, who the jury may well think knows something about the defendant’s mysterious associate that cannot be revealed, and who at the same time vouches for the truthfulness of the frightened witness’s testimony. A third impropriety occurred in the prosecutor’s rebuttal summation. He closed his argument by saying: I submit to you that the Government has proven the proof. It has proven the charges in this case beyond every doubt. The proof is very clear. Don’t let Mr. Módica walk out of this room laughing at you. Transcript at 1164-65. Appellant’s objection was overruled. Id. at 1165. The apposite ABA Standard states a fundamental principle: “The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.” ABA Standard 3-5.8(c). Cf. United States v. Hayward, supra, 420 F.2d at 146 (“It is fundamental to sound procedure in federal criminal prosecutions that counsel refrain from ‘appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only [be] to arouse passion and prejudice.’ ”) (quoting Viereck v. United States, 318 U.S. 236, 247, 63 S.Ct. 561, 566, 87 L.Ed. 734 (1943)). No trial — civil or criminal — should be decided upon the basis of the jurors’ emotions. But the stricture against prejudicial appeals to the jury is most compelling with respect to the performance of a prosecutor, for the reasons given by the Supreme Court in Berger v. United States, supra: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is" }, { "docid": "3578061", "title": "", "text": "trick, trying to stare them down, trying to threaten them.” 5. Appellants object to the portion of the prosecutor’s summation in which he quoted Thomas’ threat against Bartoli that: “We know where you are, We know where your wife and child is, We can find you anywhere.” Appellants argue that the quotation implied that Thomas had underworld connections. 6. Appellants object to the prosecutor’s reference in his summation to Frank Fitzsimmons, then President of the Teamsters Union, as Thomas’s “friend”. As this Court made clear in United States v. Bess, 593 F.2d 749 (6th Cir. 1979), an attorney’s task is to persuade the jury based solely on the proof at trial and the reasonable inferences drawn from that evidence. The court there reiterated the Supreme Court’s warning with respect to prosecutor’s actions at trial: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Id. at 754 quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). To warrant a new trial, however, prosecutorial misconduct “must be so pronounced and persistent that it permeates the entire atmosphere of the trial.” United States v. Lichenstein, 610 F.2d 1272, 1281 (5th Cir.), cert. denied sub nom., Bella v. United States, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856" }, { "docid": "7754866", "title": "", "text": "States v. Calvert, 498 F.2d 409 (6th Cir. 1974). We recognize that a United States Attorney should “prosecute with earnestness and vigor,” but it also is “his duty to refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935). As we said in United States v. Perry, 512 F.2d 805, 807 (6th Cir. 1975) (a case in which among other errors the prosecutor asked if defendant was a member of the “Dixie Mafia,” a locution similar to that employed here), “the U. S. Attorney’s duty to the public and the defendant obliges him to seek justice rather than convictions.” The government strike force attorney’s question whether the National Account System was part of another organization “of ill character like Mafia or anything like that” injected into the trial a highly prejudicial suggestion that appellant was part of a widely publicized enterprise reputedly involved in organized crime. The district judge properly reprimanded the attorney for asking such a question. In open court the following colloquy occurred: THE COURT: What possible excuse have you got in this case for suggesting there was some connection with the Mafia? MR. DANA: I didn’t. I said they were not part of it. THE COURT: The objection is sustained. Even the suggestion is out of line. Objection is sustained. MR. JACKSON: I would like a side bar. THE COURT: No, it is obviously so irrelevant to this lawsuit I am sure the jury will totally disregard it. Go ahead. I won’t grant a mistrial but I would caution the Government not to be too aggressive either. You are accusing this man of being aggressive and when you— you understand what I am saying exactly. Continue with your questioning. Although the district judge made a valiant effort to neutralize the prejudice injected by the government attorney, we believe that since the jury found appellant not guilty of four counts of the indictment and guilty of only two counts, and since the evidence is susceptible to an interpretation of innocent behavior," }, { "docid": "6494304", "title": "", "text": "Id. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), sets the standard of conduct imposed on federal prosecutors. The prosecutor’s primary interest in a criminal prosecution is that “justice shall be done.” Thus, “while he may strike hard blows, he is not at liberty to strike foul ones.” Id. at 88-89, 55 S.Ct. 629. A prosecutor may not make statements designed to arouse the passions or prejudice of the jury. Viereck v. United States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 87 L.Ed. 734 (1943). See also Donnelly, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (prosecutor’s remarks in closing argument, in the context of the entire trial, did not violate the defendant’s constitutional due process right to a fair trial, especially since the court instructed that the remark was improper and should be disregarded). Again, the district court did not demonstrate how these remarks violated federal law. In large part, most are permissible appeals to community sentiment. The district court also did not show how the Ohio Supreme Court’s harmless error ruling violated federal law. Given the overwhelming evidence of guilt, we do not find that the Ohio Supreme Court’s harmless error ruling to be faulty under the more stringent standard in Brecht. b. Reduced Sentence Comment The district court was also troubled by several references by the prosecutor to a life sentence as a “reduced sentence.” The district court noted: Second, there were constant references to any life sentence as a “reduced” sentence: (1) “... They are asking you to reduce his penalty. They are asking you to reduce the sentence, and I submit never under the evidence of this case because you can’t get better evidence, of guilt, of responsibility in what this De fendant did ...” (MP at 1092); (2) “... I would hate to think that he would get a reduction from this Jury that he does not deserve ...” (MP at 1101); (3) “... if you feel that he deserves a reduced sentence of life at that time, then I want you to think about ... [the]" }, { "docid": "22852289", "title": "", "text": "not object to the above remarks at trial. In United States v. Lawson, 337 F.2d 800, 807 (3d Cir. 1964), cert. denied, 380 U.S. 919, 85 S.Ct. 913, 13 L.Ed.2d 804 (1965), this Court held that a failure to object to improprieties in a closing argument precluded appellate review in all cases except where “plain error” is established. The impressive burden placed upon appellant is justified by the recognition that had a timely objection been made, remedial action, if appropriate, could have been taken, thereby avoiding a new trial. The error, if any, in this case was not “plain error,” and hence, cannot serve as grounds for reversal. While we do not condone the prosecutorial improprieties evident in this case, we conclude that the instances of such conduct, considered both individually and in their combined effect, did not prejudice the defendants. Reversal, therefore, is not warranted. As we indicated earlier, our Court has too frequently been required to review the issue of prosecutorial misconduct. We feel quite strongly that we should not have to deal so constantly with such a recurring issue when it can so readily be avoided. We cannot leave this discussion, therefore, without some further observations pertaining to this general subject. We do not suggest that a prosecutor abandon eloquence or advocacy. “A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows.” Viereck v. United States, 318 U.S. 236, 253, 63 S.Ct. 561, 569, 87 L.Ed. 734 (1943) (Black, J., dissenting). Nor do we suggest that a prosecutor is precluded from “hitting hard.” Berger v. United States, infra, 295 U.S. at 88, 55 S.Ct. 629. Nevertheless, preparation, discipline, knowledge, restraint and responsibility should dictate the manner by and the area in which the blows should be struck. Our society and our Courts cannot afford the luxury in terms of time and money of permitting federal prosecutors, even during lengthy trials, to abandon prosecutorial disciplines. “A" }, { "docid": "22829374", "title": "", "text": "prosecution in a criminal case there is- nothing for review here. Myres v. United States, 8 Cir., 1949, 174 F.2d 329, 339, cert. den. 338 U.S. 849, 70 S.Ct. 91, 94 L.Ed. 520; Kreinbring v. United States, 8 Cir., 1954, 216 F.2d 671, 673; Schmidt v. United States, 8 Cir., 1956, 237 F.2d 542, 543; Dusky v. United States, supra, 8 Cir., 1959, 271 F.2d 385, 401. See United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 238-239, 60 S.Ct. 811, 84 L.Ed. 1129. We are aware, of course, of Rule 52(b), F.R.Cr.P., and its provision that plain errors affecting substantial rights may be noticed on appeal even though they were not brought to the attention of the trial court. The defense has also cited Viereck v. United States, 1943, 318 U.S. 236, 248, 63 S.Ct. 561, 566, 87 L.Ed. 734, with its comment, that under the circumstances there, “We think that the trial judge should have stopped counsel’s discourse without waiting for an objection”, and Mr. Justice Sutherland’s well-known words in Berger v. United States, 1935, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. We have reviewed the closing arguments in their entirety and in detail and we conclude that the comments of government counsel were not inflammatory or improperly prejudicial. The arguments were confined to the record and to inferences which might reasonably flow from the record. There was no instance of misstatement of fact and no assertion of facts not in the record. There was no expression of either prosecutor’s personal beliefs as to matters outside the record. And, of course, as this court, speaking through Judge Whittaker, later Mr. Justice Whittaker, said in Schmidt v. United States, supra, p. 543 •of 237 F.2d: “ * * * it is not misconduct for a district attorney to express his personal belief in the guilt of a defendant, if such belief is expressly based, as it was here, on the evidence, and the jury is not led to believe that the district attorney is basing his belief upon evidence not in the record.” To the" }, { "docid": "7570036", "title": "", "text": "And that you have to convict him. You are representatives of the commuity [sic]. You have been selected from a pool of jurors who represent Martin County. And the county is relying upon you to decide this case fairly and honestly. Your decision will be a message. It’s a message to the courts. It’ll be a message to Mr. Top-ley— Defense counsel again objected and moved for a mistrial. The trial court once again overruled the objection and denied the motion. Tarpley claims that the prosecutor's argument to the jury was improper, since it went beyond the scope of the issues being tried, and inflammatory, having the effect of shifting, in the jury’s mind, the State’s ultimate burden of proof of guilt beyond a reasonable doubt. The State submits that the comments of the prosecutor were invited by defense counsel’s inquiries into the lack of evidence and his comments upon the trumped up fraud perpetrated upon the appellant. As the preceding testimony indicates, the trial court instructed the jury to disregard the prosecutor’s comments regarding defense counsel’s tactics. It has long been recognized that misconduct by a prosecuting attorney in closing argument may be grounds for reversing a conviction. Berger v. United States, 295 U.S. 78, 89, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Part of this recognition stems from a systematic belief that a prosecutor, while an advocate, is also a public servant “whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” 295 U.S. at 88, 55 S.Ct. 633. Prosecutorial misconduct is particularly dangerous because of its likely influence on the jury. Speaking of the prosecutor’s duty to seek justice, the Berger Court stated, [i]t is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuation, and, especially, assertions of personal knowledge are apt to carry much against the accused when they should properly carry none. 295 U.S. at 88, 55 S.Ct." }, { "docid": "3338882", "title": "", "text": "arrest that they made at trial. Defense counsel objected to these questions. The complained-of colloquies are as follows: Prosecutor’s Question to Sharp: What is your answer to that question as to why you didn’t make a statement to them concerning what you had been doing? Answer: I don’t know. I was just scared. That’s the reason, because I ain’t got in no trouble, nothing like that. Prosecutor’s Question to Woods: Why didn’t you tell them what you stated in court here today? Answer: They didn’t ask me. Appellant Thornton was not asked a question of this nature. His appeal is based on a theory of derivative harm caused to him by the questions directed to his co-defendants. It is elementary that a defendant who elects to testify in his own behalf is subject to cross examination and impeachment just as is any witness. Grunewald v. United States, 1957, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931. It is equally fundamental that it is error for a prosecutor to comment to a jury about a criminal defendant’s failure to take the witness stand in his own behalf, or his failure to answer a particular question which would violate his Fifth Amendment right against self-incrimination. Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Johnson v. United States, 1943, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704; Wilson v. United States, 1893, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650. In the case before us, the trial judge ruled that the quoted questions were within the permissible cross examination of these testifying defendants. The question for our determination is whether the above-quoted colloquies prejudicially called the attention of the jury to the exercise by appellants of their Fifth Amendment right to remain silent when they were arrested. The leading case in this area is Raffel v. United States, 1926, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054. In Raffel, the first trial for conspiracy to violate the National Prohibition Act, resulted in a hung jury. Raffel was tried a second time for the same" }, { "docid": "134074", "title": "", "text": "and it was refused. . See Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943). Viereck involved a wartime prosecution for willful omission of material facts in a registration statement required of agents of foreign principals. The prosecutor made an impassioned appeal to the jurors’ sense of patriotism: This is war. It is a fight to the death. The American people are relying upon you ladies and gentlemen for their protection against this sort of a crime, just as much as they are relying upon the protection of the men who man the guns in Bataan Peninsula, and everywhere else. They are relying upon you ladies and gentlemen for their protection. We are at war. You have a duty to perform here. As a representative of your Government I am calling upon every one of you to do your duty. 318 U.S. at 247 n. 3, 63 S.Ct. at 566 n. 3 (quoting prosecutor). The Supreme Court termed the remarks “highly prejudicial.” Id. at 248, 63 S.Ct. at 566. They constituted “an appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice.” Id. at 247, 63 S.Ct. at 566. . Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). . 416 U.S. 637, 646-47, 94 S.Ct. 1868, 1872-73, 40 L.Ed.2d 431 (1974) (quoting Miller v. Pate, 386 U.S. 1, 6, 87 S.Ct. 785, 787, 17 L.Ed.2d 690 (1967); see also United States v. Kravitz, 281 F.2d 581 (3d Cir.1960), cert, denied, 364 U.S. 941, 81 S.Ct. 459, 5 L.Ed.2d 372 (1961): We think little of the words used by the prosecutor. We think they were unnecessary in an otherwise logical and convincing summation. But we quite realize as we have said before that some latitude must be given to lawyers’ language in a hard fought case. To say that this remark would have a prejudicial effect on a jury which had listened throughout a long trial to the unfolding of the testimony" }, { "docid": "6494303", "title": "", "text": "doing is just as important as what the soldiers did in our World Wars and in Viet Nam. You are setting the standard of justice in Trumbull County.” (MP at 1083); (3) “... I agree with Defense counsel that you will live with that in the future. You will live with that not only for yourselves but for your parents, for your children and for your grandchildren ... (MP at 1094); and (4) [I] ask you only to ... do your duty as a collective group representing a community....” (MP at 1101). Opinion Granting Writ at 94 n. 77. The Ohio Supreme Court noted that “[a] request that the jury maintain community standards is not equivalent to the exhortation that the jury succumb to public demand.” State v. Lorraine, 613 N.E.2d at 218. The court held that “[t]he evidence in the ease was so overwhelming that none of the prosecutor’s comments, even if error, amounted to prejudicial error.” Id. The court further noted that instances of prosecutorial misconduct can be harmless when incidental and isolated. Id. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), sets the standard of conduct imposed on federal prosecutors. The prosecutor’s primary interest in a criminal prosecution is that “justice shall be done.” Thus, “while he may strike hard blows, he is not at liberty to strike foul ones.” Id. at 88-89, 55 S.Ct. 629. A prosecutor may not make statements designed to arouse the passions or prejudice of the jury. Viereck v. United States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 87 L.Ed. 734 (1943). See also Donnelly, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (prosecutor’s remarks in closing argument, in the context of the entire trial, did not violate the defendant’s constitutional due process right to a fair trial, especially since the court instructed that the remark was improper and should be disregarded). Again, the district court did not demonstrate how these remarks violated federal law. In large part, most are permissible appeals to community sentiment. The district court also did not show how the Ohio" }, { "docid": "9971574", "title": "", "text": "do you understand that I don’t have a client? Witness: I do understand. Prosecutor: I don’t represent a defendant, do you know that? Witness: Yes. Prosecutor: All right. The only thing I’m required to do is argue the truth and the facts, do you know that? Witness: Yes. Prosecutor: So do you understand that I can’t come in here and shade the facts because I don’t like you or I didn’t want you to get the safety valve? Defense Counsel: Judge, I object to that as leading. Court: The objection leading is overruled. ROA, Vol. II at 2676-77. Third, Mr. Anaya points to another statement in the beginning of the prosecutor’s closing rebuttal: You know, I always find it interesting when defense attorneys talk about why the government does the things that we do. It reminds me of how very different our jobs are and what we do. I don’t have a client. They serve the defendant. Mr. Williams and I don’t put cooperators on the stand with the hope they will make us happy. There’s only one thing that makes the government happy, and it’s if you tell the truth. Suppl. ROA at 218. Mr. Anaya argues that the prosecutor’s statements distracted the jurors from the evidence by focusing their attention on her credibility and suggesting his counsel’s job was to trick them. At trial, Mr. Anaya did not object to the statement made in closing argument and only objected to the prosecutor’s questioning of the witness as leading. The district court overruled that objection. The issue of prosecutorial misconduct alleged on appeal was not presented to the district court to decide in the first instance. We therefore review for plain error. United States v. Baldridge, 559 F.3d 1126, 1134-35 (10th Cir.2009). In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Supreme Court deemed a prosecutor’s statement about defense counsel to be misconduct and reversed the defendant’s conviction because the cumulative effect of this and other misconduct unduly influenced the jury. Id. at 89, 55 S.Ct. 629. The prosecutor stated that defense" }, { "docid": "11257762", "title": "", "text": "have been ruled inadmissible. Appellant also claims error with respect to certain comments made by the prosecutor during closing argument. This case involved the confrontation of a Negro youth and two police officers. Focusing on this, the prosecutor warned the jury that to acquit appellant would leave the police powerless to protect against such behavior short of resort to martial law. While such an argument is always to be condemned as “an appeal wholly irrelevant to any facts or issues in the case,” Viereck v. United States, 318 U.S. 236, 247, 63 S.Ct. 561, 566, 87 L.Ed. 734 (1943), and as a dereliction of the prosecutor’s high duty to prosecute fairly, see Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), in the context of current events, raising the spectre of martial law was an especially flagrant and reprehensible appeal to passion and prejudice. Although the prosecutor “may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, supra, 295 U.S. at 88, 55 S.Ct. at 633; Viereck v. United States, supra, 318 U.S. at 248, 63 S.Ct. at 567. Reversed. . 22 D.C.Code § 505 (Supp. V 1966). . The prior assault, also involving a knife, occurred in December, 1964. Appellant was given an indeterminate sentence under the Youth Corrections Act, 18 U.S.C. § 5010(b). See United States v. Brown, D.D.C., Crim. No. 80-65, June 25, 1965. . Compare Walker v. United States, 124 U.S.App.D.C. 194, 363 F.2d 681 (1966); Hood v. United States, 125 U.S.App.D.C. -, 365 F.2d 949 (1966). See also Stevens v. United States, - U.S.App.D.C. -, 370 F.2d 485 (decided October 20, 1966) (dissenting opinion of Judge Fahy). . The colloquy between counsel and the trial court reads in relevant part: Me. Dbiscoll: * * * Now, he was 18 years old when he was convicted of that, and Your Honor can" }, { "docid": "3056035", "title": "", "text": "237, 247-48, 63 S.Ct. 561, 562, 566-567, 87 L.Ed. 734 (1943); Berger v. United States, 295 U.S. 78, 88-89, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). The trial judge denied the motion, but instructed the jury to disregard the remarks. Appellants claim that it was error to deny the motion for mistrial, that the judge’s instructions could not cure the harm done by the prosecutor, and that appellants’ resulting convictions thus violated their right to due process of law. We agree with the trial court that this last remark of the prosecutor was improper. We have held that prosecutors must avoid such comments given the “invisible cloak of credibility” that they wear “in virtue of their position,” Patriarca v. United States, 402 F.2d 314, 321 (1st Cir. 1968), cert. denied, 393 U.S. 1022, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969). As the Supreme Court has pointed out, The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. ... It is as much his duty to refrain from improper methods calculated to produce a conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. at 88, 55 S.Ct. at 633. See Viereck v. United States, 318 U.S. at 247-48, 63 S.Ct. at 566, 567; United States v. Modica, 663 F.2d 1173, 1180 (2d Cir. 1981). The issue here, however, is whether it was necessary to retry the case or whether a cautionary instruction was adequate. To require a new trial, we must conclude either that, despite the instruction, the misconduct was likely to have affected the trial’s outcome, compare United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239, 242-43, 60 S.Ct. 811, 851, 853, 84 L.Ed. 1129 (1939), with Berger v. United States, 295 U.S. at 89, 55 S.Ct. at 633, or" } ]

[ { "docid": "48451", "title": "", "text": "PER CURIAM. Robert J. Wright brought this declaratory judgment action challenging the constitutionality of the Oregon statute prohibiting the unauthorized practice of law. He contends that the statute is impermissibly vague and contradictory. After Wright had filed three successive complaints in the district court, the magistrate recommended that the case be dismissed. The court dismissed the action for want of jurisdiction. The action should have been dismissed under Fed.R.Civ.P, 12(bX6); however, we affirm the judgment of dismissal. In an action nearly identical to this one, the Arizona statutes forbidding the unauthorized practice of law were sustained by the state Supreme Court in Hackin v. State, 102 Ariz. 218, 427 P.2d 910, appeal dismissed, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347 reh. denied, 389 U.S. 1060, 88 S.Ct. 766, 19 L.Ed.2d 866 (1967). The Supreme Court dismissed Hackin’s appeal for lack of a substantial federal question. Hac-kin v. Arizona, 389 U.S. 143, 88 S.Ct. 325,19 L.Ed.2d 347 reh. denied, 389 U.S. 1060, 88 S.Ct. 766, 19 L.Ed.2d 866 (1967). Summary dismissals for want of a substantial federal question are decisions on the merits that bind lower courts until subsequent decisions of the Supreme Court suggest otherwise. Hicks v. Miranda, 422 U.S. 332, 334-45, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975). See also McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645, 646, 96 S.Ct. 1154, 1155, 47 L.Ed.2d 366 (1976) (precedential value of a dismissal for want of a substantial federal question extends beyond the facts of the particular case to all similar cases). The Oregon statute is not unconstitutional. Affirmed. . Or.Rev.Stat. § 9.160 provides: “Except for the right reserved to litigants by ORS 9.320 to prosecute or defend a cause in person, no person shall practice law or represent himself as qualified to practice law unless he is an active member of the Oregon State Bar.” . Wright also appears to contend that Or.Rev. Stat. § 9.160 is unconstitutional because Or. Rev.Stat. § 34.340 permits persons other than attorneys to draft a petition for writ of habeas corpus. This argument is without merit. Or. Rev.Stat. §" } ]

[ { "docid": "2350499", "title": "", "text": "Local Rules of Bankruptcy Procedure (West 1993) (L.R.Bankr.P.) of this court provides: Only persons admitted to practice in the United States District Court for the District of Connecticut or admitted as visiting lawyers pursuant to the Local Rules of Civil Procedure shall 'practice in the Bankruptcy Court. (emphasis added). Rule 2(a) of the Local Rules of Civil Procedure for the United States District Court for the District of Connecticut (L.R.D.C.) provides in relevant part: Any attorney of the bar of the State of Connecticut or of the bar of any United States District Court whose professional character is good may be admitted to practice in this Court upon motion of any attorney of this Court and upon taking the proper oath.... (emphasis added). I find at the outset that Betsos’s activities constituted the practice of law. The practice of law is not limited to appearing before state courts; it includes giving legal advice and drafting documents regardless of whether it occurs in a “court of record,” and regardless of whether the practice is carried on as a business. Grievance Comm. of the Bar of Fairfield County v. Dacey, 154 Conn. 129, 140, 222 A.2d 339 (1966), appeal dism’d, 386 U.S. 683, 87 S.Ct. 1325, 18 L.Ed.2d 404 (1967). The practice of law consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces the giving of legal advice on a large variety of subjects and the preparation of legal instruments covering an extensive field.... State Bar Ass’n of Connecticut v. Connecticut Bank and Trust Co., 145 Conn. 222, 234-35, 140 A.2d 863 (1958); see also Monroe v. Horwitch, 820 F.Supp. 682, 686 (D.Conn.1993) (the preparation of documents in divorce actions constitutes the practice of law under § 51-88). “[I]t is clear that § 51-88 forbids the performance of any act both in and out of court that is commonly understood to be the practice of law by persons not admitted to the bar_” Windover v. Sprague Technologies, 834 F.Supp. 560, 566 (D.Conn.1993); Grievance Committee of Bar of New" }, { "docid": "3807192", "title": "", "text": "becomes empty and meaningless.” Johnson v. Avery, 252 F. Supp. 783, 784 (D. C. M. D. Tenn.). The next-friend doctrine was recognized at common law and is given effect in most jurisdictions today, either by statute or by court decision. See Collins v. Traeger, 27 F. 2d 842, 843 (C. A. 9th Cir.); Ex parte Dostal, 243 F. 664, 668 (D. C. N. D. Ohio); State v. Fabisinski, 111 Fla. 454, 461, 152 So. 207, 209; In re Nowack, 274 Mich. 544, 549, 265 N. W. 459, 461; In re Nahl v. Delmore, 49 Wash. 2d 318, 301 P. 2d 161; 28 U. S. C. §2242. An Arizona statute provides that application for habeas corpus may be made by the person detained “or by some person in his behalf . . . .” Ariz. Rev. Stat. Ann. § 13-2002. The court below recognized that this statute precluded prosecution of appellant for writing and filing the writ application on behalf of the indigent prisoner. Hackin v. State, 102 Ariz., at 219, 427 P. 2d, at 911. But the statute was held not to authorize appellant to argue the matter in court. Id., at 220, 427 P. 2d, at 912. “Social workers in public assistance may already be required to practice law as substantially as if they were in a courtroom. In making an initial determination of an applicant’s eligibility, the public assistance worker must complete the applicant’s financial statement. ‘Every question, or nearly every question, on the financial statement, is a legal question. When the social worker advises, or even discusses the questions or answers, he may very likely be giving legal advice.’ The private social worker who advises an applicant that he should apply, how to apply, what to answer and how to appeal if the application is rejected is also giving 'legal’ advice. When he argues with the public worker on behalf of the applicant, he is giving representation. When and if he goes to a hearing on behalf of the applicant, he is surely engaging in advocacy.” Sparer, Thorkelson & Weiss, supra, n. 2, at 499-500. See also" }, { "docid": "21852217", "title": "", "text": "different from those in the Hackin case, reported in 102 Ariz. 218, 427 P.2d 910, that we do not regard it as decisive here. The issues here do present a substantial federal question. II. GROUNDS FOR INJUNCTION form of unconstitutional harassment, undertaken without basis in law or fact, for the purpose of deterring him and other lawyers similarly situated from helping to provide legal representation in civil rights cases, and to deter Negroes like Duncan from seeking their representation. We have concluded, under the circumstances of this case, that this was an unlawful prosecution which was undertaken for purposes of such harassment, which served no legitimate interest of the State, for which no adequate remedy at law exists in the state courts, and which causes irreparable injury to Gary Duncan and other Negroes in need of representation in civil rights cases. See United States v. McLeod, 385 F.2d 734 (5 Cir. 1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); City of Greenwood, Mississippi v. Peacock, 384 U.S. 808, 829, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). This conclusion makes unnecessary our consideration of the attacks on the statutes. Courts are reluctant to reach the issue of a statute’s constitutionality if there is any other basis for decision. Furthermore, the State has a legitimate interest to regulate the practice of law, and there has been no previous official interference elsewhere in the state with out-of-state attorneys engaged in civil rights litigation. The second question for the court’s determination is whether equitable grounds for injunctive relief exist in the circumstances of this case. The plaintiffs and the intervenors, the United States and the Louisiana State Bar Association, agree that injunctive relief can be granted in this case without reaching the constitutional attacks on the state statutes. They contend that, apart from the issues relating to the constitutionality of the statutes, injunc.tive relief may be granted because the arrest and prosecution of Sobol was a Sobol’s representation of Duncan was not unauthorized practice of law under LSA-R.S. 37:213-214. Essentially section 213 provides that no natural person, who" }, { "docid": "21852216", "title": "", "text": "case where the United States was the plaintiff, we agree with the Government that the underlying reason for it — the assertion of a national interest — would justify extending that rule to this case where the Government is an intervenor for that purpose. What is important is that the United States is a party to the law suit, asserting a national interest and seeking relief against a state court proceeding on the basis of that interest, and not whether its technical posture is plaintiff or plaintiff-intervenor. The defendants urged as a ground for a Motion to Dismiss that the court lacks jurisdiction because no substantial federal question is involved in this case, relying on Hackin v. Arizona, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347, wherein the Supreme Court of the United States dismissed an appeal from a conviction for unauthorized practice of law in the state courts for lack of a substantial federal question. We denied the Motion to Dismiss, but defendants re-urge the contention. The issues in this case are so different from those in the Hackin case, reported in 102 Ariz. 218, 427 P.2d 910, that we do not regard it as decisive here. The issues here do present a substantial federal question. II. GROUNDS FOR INJUNCTION form of unconstitutional harassment, undertaken without basis in law or fact, for the purpose of deterring him and other lawyers similarly situated from helping to provide legal representation in civil rights cases, and to deter Negroes like Duncan from seeking their representation. We have concluded, under the circumstances of this case, that this was an unlawful prosecution which was undertaken for purposes of such harassment, which served no legitimate interest of the State, for which no adequate remedy at law exists in the state courts, and which causes irreparable injury to Gary Duncan and other Negroes in need of representation in civil rights cases. See United States v. McLeod, 385 F.2d 734 (5 Cir. 1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); City of Greenwood, Mississippi v. Peacock, 384 U.S. 808, 829," }, { "docid": "22872107", "title": "", "text": "whether admission to the Bar and receiving authority to practice law is a “right” or a “privilege.” I am old enough and old-fashioned enough always to have regarded it more as a privilege than as a right. I at least thought that was the tradition. A century ago Mr. Justice Field referred to the practice of law by a qualified person as a right and not as a matter of the State’s grace or favor. Ex parte Garland, 4 Wall. 333, 379 (1867). The Arizona court has spoken in similar terms. Application of Klahr, 102 Ariz. 529, 531, 433 P. 2d 977, 979 (1967). It could oppositely be stated, with just as much accuracy, as the Bar in its brief here asserts, that “one qualified by character, integrity and learning has the right to practice law.” Indeed, this is precisely the way the Arizona court has phrased it: “[T]he practice of law is not a privilege but a right, conditioned solely on the requirement that a person have the necessary mental, physical and moral qualifications.” Application of Klahr, 102 Ariz., at 531, 433 P. 2d, at 979. See also Application of Levine, 97 Ariz. 88, 90-91, 397 P. 2d 205, 206-207 (1964), and Application of Burke, 87 Ariz. 336, 339, 351 P. 2d 169, 172 (1960). The characterization of Bar admission as a right or as a privilege may be little more than an exercise in semantics. It seems to me that, whichever it may be, the State, in granting the authority to practice law, with what surely is the true privilege, not the right, to be entrusted with a client’s confidences, aspirations, freedom, life itself, property, and the very means of livelihood, demands something more of the applicant than a formal certificate of completion of a course of legal study and the ability acceptably to answer a series of questions on a Bar examination. It presumably demands what fundamentally is character. And it is character that a State holds out to the public when it authorizes an applicant to practice law. 9. Judges and Bar Examiners, of course, should" }, { "docid": "13232631", "title": "", "text": "is this one: In general, professional time is limited to those tasks performed while representing the trustee in the prosecution of contested matters and adversary proceedings, attendance at court hearings in the capacity of attorney or other professional when the trustee has an interest, the preparation of professional related applications, and the performance of other specialized services that cannot be performed practically or lawfully by the trustee without engaging the services of a professional. In re Holub, 129 B.R. 293, 296 (Bankr.M.D.Fla.1991). Under this analysis, the professional skills of an attorney are required when there is an adversary proceeding or a contested motion that requires the trustee to appear and prosecute or defend, when an attorney is needed for a court appearance, or when other services are needed that require a law license. The practice of law in Nevada, at a minimum, involves giving legal advice and exercising legal judgment. See Pioneer Title Ins. & Trust v. State Bar of Nevada, 74 Nev. 186, 326 P.2d 408, 411 (1958)(unauthorized practice of law occurs with exercise of legal judgment, advice, guidance and suggestion). Law practice is not limited to conducting litigation, but includes the preparation of documents requiring the use of legal knowledge or skill. For example in Garcia, the Bankruptcy Appellate Panel ruled that preparing two documents — a stipulation and a mutual release — constituted legal services. Analyzing the definition of “practicing law,” the BAP held that under applicable state law it means more than just appearing in court. “[T]he practice of law includes the preparation of legal instruments and contracts by which legal rights are secured, whether the matter is pending in court or not.” The complexity of the documents is not the determining factor. In re Garcia, 335 B.R. 717, 728 (9th Cir. BAP 2005). A trustee-attorney applicant has the burden of showing that a service “cannot be performed practically or lawfully except by an attorney.” In re Howard Love Pipeline Supply Co., 253 B.R. 781, 792 (Bankr.E.D.Tex.2000). Attorneys must therefore present billing records with enough detail to show that the charge involves some legal service beyond" }, { "docid": "6766704", "title": "", "text": "at 271. However, in this particular case, the defendant did give legal advise “in the course of personal contacts concerning particular problems which might arise in the preparation and presentation of the purchaser’s asserted matrimonial cause of action or pursuit of other legal remedies and assistance in the preparation of necessary documents.” Id. at 1040, 348 N.Y.S.2d at 272. Thus, the defendant was found to have conducted the unauthorized practice of law. Similarly, in In re Thompson, 574 S.W.2d 365 (Mo.1978), the non-attorney respondent sold “divorce kits” to franchisees, who in turn sold them to the public. Id. at 366. The kits contained instructions and practice forms relevant to uncontested dissolutions of marriage. Id. The instructions included in the packet were of two types, “a set of general procedural instructions designed to instruct as to what forms to file, in what order and where, and instructions on how to prepare the forms.” Id. At one time, the kits also included a cassette tape which restated the instructions, but this practice was eliminated prior to the hearing. Id. The.court determined that, on the facts of this case, the respondent’s advertisement and sale of the divorce kits did not constitute the unauthorized practice of law as long as they refrained from giving personal advice regarding legal remedies or consequences to the persons who purchased the kits. Id. at 369. In In re New York County Lawyers’Ass’n v. Dacey, 28 A.D.2d 161, 283 N.Y.S.2d 984, rev’d, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967), the defendant published a book entitled “How to Avoid Probate!” The book contained approximately 55 pages of text and 310 pages of forms. In reversing the trial court, the Court of Appeals adopted the dissenting opinion of the trial court, which stated: It cannot be claimed that the publication of a legal text which purports to say what the law is amounts to legal practice. And the mere fact that the principles or rules stated in the text may be accepted by a particular reader as a solution to his problem does not affect this____ Apparently it" }, { "docid": "3807175", "title": "", "text": "Per Curiam. The motion to dispense with printing the jurisdictional statement is granted. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Douglas, dissenting. Appellant, who is not a licensed attorney, appeared in a state court habeas corpus proceeding on behalf of an indigent prisoner. The indigent prisoner was being held for extradition to Oklahoma, where he had been convicted of murder and had escaped from custody. Appellant had previously attempted to secure for the prisoner appointed counsel to argue in court the prisoner’s contention that his Oklahoma conviction was invalid due to denial of certain constitutional rights. But in Arizona an indigent has no right to appointed counsel at habeas corpus proceedings (e. g., Palmer v. State, 99 Ariz. 93, 407 P. 2d 64) including habeas corpus proceedings that are part of the extradition process (Applications of Oppenheimer, 95 Ariz. 292, 389 P. 2d 696). Unable to obtain counsel for the indigent, appellant chose to represent him himself and was convicted of a misdemeanor for violation of an Arizona statute providing that “No person shall practice law in this state unless he is an active member of the state bar in good standing . . . .” (Hackin v. State, 102 Ariz. 218, 427 P. 2d 910, quoting Ariz. Rev. Stat. Ann. § 32-261 A.) Appellant contends that this statute suffers from overbreadth and vagueness and is unconstitutional on its face because it interferes with the rights of the destitute and ignorant — those who cannot acquire the services of counsel — to obtain redress under the law for wrongs done to them. He also alleges the statute is unconstitutional as applied here, where appellant acted on behalf of the indigent prisoner only after exhaustive efforts to obtain appointed counsel. Appellant is no stranger to the law. He graduated from an unaccredited law school but was refused admission to the Arizona Bar. See Hackin v. Lockwood, 361 F. 2d 499 (C. A. 9th Cir.), cert. denied, 385 U. S. 960. The claim that the statute deters constitutionally protected" }, { "docid": "20047908", "title": "", "text": "this opinion will issue. . Arkansas, Scholtes v. Signal Delivery Service, Inc., 548 F.Supp. 487 (W.D.Ark.1982) (applying Arkansas law); Kentucky, Scroghan v. Kraftco Corp., 551 S.W.2d 811 (Ky.App.1977); North Carolina, Sides v. Duke University, 74 N.C.App. 331, 328 S.E.2d 818 (1985); South Carolina, Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213 (1985); Tennessee, Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn.1984); Texas, Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985), Virginia, Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985); and West Virginia, Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978). . Arizona, Larsen v. Motor Supply Co., 117 Ariz. 507, 573 P.2d 907 (App. 1977); California, Cleary v. American Airlines, Inc., 111 Cal.App.3d 443, 168 Cal.Rptr. 722 (2d Dist.1980); Hawaii, Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625 (1982); Idaho, Jackson v. Minidoka . Irrig. Dist., 98 Idaho 330, 563 P.2d 54 (1977); Montana, Keneally v. Orgain, 186 Mont. 1, 606 P.2d 127 (1980); Oregon, Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975); and Washington, Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984). . Connecticut, Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980); Maryland, Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981); Massachusetts, Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977); New Hampshire, Howard v. Dorr Woolen Co., 120 N.H. 295, 414 A.2d 1273 (1980); New Jersey, Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980); and Pennsylvania, Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978). . Illinois, Palmateer v. International Harvester, 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981); Indiana, Campbell v. Eli Lilly & Co., 413 N.E.2d 1054 (Ind.App.1980), transfer den’d. (Ind.) 421 N.E.2d 1099; Missouri, Beasley v. Affiliated Hospital Products, 713 S.W.2d 557 (Mo.App.1986); and Wisconsin, Ward v. Frito-Lay, Inc., 95 Wis.2d 372, 290 N.W.2d 536 (App.1980). . Those states joining Mississippi at present in refusing to" }, { "docid": "19744617", "title": "", "text": "to debtors.”). We look to state law for guidance in determining whether Frankfort has engaged in the unauthorized practice of law. See Taub v. Weber, 366 F.3d 966, 968-69 (9th Cir.2004). The parties agree that California law applies. California courts have long accepted that, in a general sense, “the practice of law ... includes legal advice and counsel and the preparation of legal instruments and contracts.” Baron v. City of L.A., 2 Cal.3d 535, 86 Cal.Rptr. 673, 469 P.2d 353, 357 (1970) (noting that this definition was adopted as early as 1922). But they have recognized too that “ascertaining whether a particular activity falls within this general definition may be a formidable endeavor.” Id. at 358; see People v. Landlords Profl Servs., 215 Cal.App.3d 1599, 1605, 264 Cal.Rptr. 548 (1989) (observing that “whether any given activity is an unauthorized practice of law depends upon the context and situation involved”). Determining whether particular assistance rendered in the preparation of legal forms constitutes the unauthorized practice is often especially challenging. Cf. Landlords Prof'l Servs., 215 Cal.App.3d at 1605-09, 264 Cal.Rptr. 548 (observing, after reviewing prior cases, that merely clerical preparation services do not constitute the practice of law, and that impersonal instruction on form completion—such as may appear in a detailed manual—may also be permissible). Several features of Frankfort’s business, taken together, lead us to conclude that it engaged in the unauthorized practice of law. To begin, Frankfort held itself out as offering legal expertise. Its websites offered customers extensive advice on how to take advantage of so-called loopholes in the bankruptcy code, promised services comparable to those of a “top-notch bankruptcy lawyer,” and described its software as “an expert system” that would do more than function as a “customized word processor[ ].” The software did, indeed, go far beyond providing clerical services. It determined where (particularly, in which schedule) to place information provided by the debtor, selected exemptions for the debtor and supplied relevant legal citations. Providing such personalized guidance has been held to constitute the practice of law. See, e.g., Kaitangian, 218 B.R. at 110 (“[Ajdvis-ing of available exemptions from" }, { "docid": "18549977", "title": "", "text": "(Bankr.D.Kan.1993); In re Bachmann, 113 B.R. 769, 772 (Bankr.S.D.Fla.1990); see also In re Chas. A Stevens & Co., 108 B.R. 191, 193 (Bankr.N.D.Ill.1989). Preparation of pleadings and court appearances and arguments thereon are part and parcel of the practice of law. Illinois courts have held that the practice of law is not limited to court appearances, but also includes services rendered out of court. People v. Peters, 10 Ill.2d 577, 581-82, 141 N.E.2d 9 (1957). The Illinois Supreme Court has defined the practice of law as constituting “the preparation of pleadings, and other papers incident to actions and special proceedings, and the management of such actions and proceedings on behalf of clients before judges and courts, and, in addition, conveyancing, the preparation of legal instruments of all kinds, and, in general, all advice to clients, and all action taken for them in matters connected with the law.” People ex rel. Courtney v. Association of Real Estate Taxpayers of Illinois, 354 Ill. 102, 109-10, 187 N.E. 823 (1933). Any person having an interest in a legal mater is entitled to appear in his own behalf (or pro se) and protect only his interests so long as he proceeds in accord with the rules of practice and procedure. Biggs v. Plebanek, 343 Ill.App. 466, 99 N.E.2d 363 (1951), appeal transferred, 407 Ill. 562, 95 N.E.2d 870 (1950), cert. denied, 343 U.S. 912, 72 S.Ct. 647, 96 L.Ed. 1328 (1952) (emphasis supplied). This does not allow a non-lawyer the privilege of acting as a lawyer for anyone else, even a spouse. The Court holds that when Anthony or his professional corporation prepared, signed, filed, and argued papers on behalf of Angeline, that constituted the unauthorized practice of law, and was more than merely providing typing or document production services to her. Any such further activities will require the Court to make the appropriate referrals to the appropriate authorities for further action. See 705 ILCS 205/1. The Court strongly cautions Anthony Herrera against continuing to engage in the unauthorized practice of law. IV. CONCLUSION For the foregoing reasons, the Court hereby grants the motion" }, { "docid": "22856193", "title": "", "text": "state bar shall be appointed by this court. . . . The committee shall examine applicants and recommend to this court for admission to practice applicants who are found by the committee to have the necessary qualifications and to fulfill the requirements prescribed by the rules of the board of governors as approved by this court respecting examinations and admissions. . . . The court will then consider the recommendations and either grant or deny admission.” According to Ronwin’s complaint, the Committee announced before the February examination that the passing grade on the test would be 70, but it assigned grades using a scaled scoring system. Under this system, the examinations were graded first without reference to any grading scale. Thus, each examination was assigned a “raw score” based on the number of correct answers. The Committee then converted the raw score into a score on a scale of zero to 100 by establishing the raw score that would be deemed the equivalent of “seventy.” See n. 19, infra. Rule 28(c) VII B provided: “The Committee on Examinations and Admissions will file with the Supreme Court thirty (30) days before each examination the formula upon which the Multi-State Bar Examination results will be applied with the other portions of the total examination results. In addition the Committee will file with the Court thirty (30) days before each examination the proposed formula for grading the entire examination.” 110 Ariz., at xxxii. See n. 4, supra; Application of Courtney, 83 Ariz. 231, 233, 319 P. 2d 991, 993 (1957) (“[T]his court may in the exercise of its inherent powers, admit to the practice of law with or without favorable action by the Committee”); Hackin v. Lockwood, 361 F. 2d 499, 501 (CA9) (“[W]e find the power to grant or deny admission is vested solely in the Arizona Supreme Court”), cert. denied, 385 U. S. 960 (1966). See also Application of Burke, 87 Ariz. 336, 351 P. 2d 169 (1960). Rule 28(c) XII F provided: “1. An applicant aggrieved by any decision of the Committee “(A) Refusing permission to take an examination upon" }, { "docid": "3807176", "title": "", "text": "misdemeanor for violation of an Arizona statute providing that “No person shall practice law in this state unless he is an active member of the state bar in good standing . . . .” (Hackin v. State, 102 Ariz. 218, 427 P. 2d 910, quoting Ariz. Rev. Stat. Ann. § 32-261 A.) Appellant contends that this statute suffers from overbreadth and vagueness and is unconstitutional on its face because it interferes with the rights of the destitute and ignorant — those who cannot acquire the services of counsel — to obtain redress under the law for wrongs done to them. He also alleges the statute is unconstitutional as applied here, where appellant acted on behalf of the indigent prisoner only after exhaustive efforts to obtain appointed counsel. Appellant is no stranger to the law. He graduated from an unaccredited law school but was refused admission to the Arizona Bar. See Hackin v. Lockwood, 361 F. 2d 499 (C. A. 9th Cir.), cert. denied, 385 U. S. 960. The claim that the statute deters constitutionally protected activity is not frivolous. Whether a State, under guise of protecting its citizens from legal quacks and charlatans, can make criminals of those who, in good faith and for no personal profit, assist the indigent to assert their constitutional rights is a substantial question this Court should answer. Rights protected by the First Amendment include advocacy and petition for redress of grievances (NAACP v. Button, 371 U. S. 415, 429; Edwards v. South Carolina, 372 U. S. 229, 235), and the Fourteenth Amendment ensures equal justice for the poor in both criminal and civil actions (see Williams v. Shaffer, 385 U. S. 1037 (dissenting opinion)). But to millions of Americans who are indigent and ignorant — and often members of minority groups — these rights are meaningless. They are helpless to assert their rights under the law without assistance. They suffer discrimination in housing and employment, are victimized by shady consumer sales practices, evicted from their homes at the whim of the landlord, denied welfare payments, and endure domestic strife without hope of the legal" }, { "docid": "2220578", "title": "", "text": "710, 714-15 (1981) (per curiam), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982); In re Logan, 70 N.J. 222, 227, 358 A.2d 787, 790 (1976) (per curiam); Ohio State Bar Ass’n v. Illman, 45 Ohio St.2d 159, 161-62, 342 N.E.2d 688, 690 (per curiam), cert. denied, 429 U.S. 824, 97 S.Ct. 77, 50 L.Ed.2d 86 (1976); In re Evinger, 604 P.2d 844, 845 (Okla.1979); In re Holman, 297 Or. 36, 682 P.2d 243, 260 (1984) (per curiam); In re Kunkle, 88 S.D. 269, 280, 218 N.W.2d 521, 527, cert. denied, 419 U.S. 1036, 95 S.Ct. 521, 42 L.Ed.2d 312 (1974); Memphis & Shelby County Bar Ass'n v. Vick, 40 Tenn.App. 206, 213-14, 290 S.W.2d 871, 875 (1955), cert. denied, 352 U.S. 975, 77 S.Ct. 372, 1 L.Ed.2d 328 (1957); In re Sherman, 58 Wash.2d 1, 8, 354 P.2d 888, 891 (1960) (per curiam). . Wisconsin v. Schaffer, 565 F.2d 961 (7th Cir.1977) (federal officer found in contempt stood to be subject to either civil or criminal liability); North Carolina v. Carr, 386 F.2d 129 (4th Cir.1967) (same); United States v. Pennsylvania Environmental Hearing Bd., 377 F.Supp. 545 (M.D.Pa.1974) (administrative hearing where officer stood to be subject to civil liability). . See also, Mattice v. Meyer, 353 F.2d at 318; Ramos Colon v. United States Attorney, 576 F.2d 1, 5-6 (1st.Cir.1978); Application of Phillips, 510 F.2d 126 (2d Cir.1975) (per curiam); State v. Peck, 88 Conn. at 452, 91 A. 274. . See also, In re Roth, 105 N.M. 255, 256, 731 P.2d 951, 952 (1987) and In re Martinez, 104 N.M. 152, 153, 717 P.2d 1121, 1122 (1986); Committee on Legal Ethics of West Virginia State Bar v. Mullins, 159 W.Va. 647, 651, 226 S.E.2d, 427, 429 (1976); Committee on Legal Ethics of West Virginia State Bar v. Graziani, 157 W.Va. 167, 171-172, 200 S.E.2d 353, 355 (1973) cert. denied 416 U.S. 995, 94 S.Ct. 2410, 40 L.Ed.2d 774 (1974). . See also, In re Lockwood, 154 U.S. 116, 118, 14 S.Ct. 1082, 1083, 38 L.Ed. 929 (1894); In re Summers, 325 U.S. 561, 570-571, 65" }, { "docid": "19744616", "title": "", "text": "Frankfort’s claim that it could show debtors how to “[fjile bankruptcy and keep it off your credit report!” or to “keep 3, 4, or even 5 cars”), deceptive. Id.; cf. In re Kaitangian, 218 B.R. 102, 117 (Bankr. S.D.Cal.1998) (holding that a bankruptcy petition preparer’s failure to disclose all fees constituted an unfair and deceptive act). We conclude that this finding was supported by sufficient evidence and was proper. Correspondingly, we affirm the bankruptcy court’s certification to the district court and issuance of an injunction. IV. Since “bankruptcy petition preparers” are—by definition—not attorneys, they are prohibited from practicing law. Cf., e.g., In re Bernales, 345 B.R. 206, 216 (Bankr.C.D.Cal.2006) (“The law is clear: ‘[T]he services of bankruptcy petition preparers are strictly limited to typing bankruptcy forms.’ ” (quoting Kaitangian, 218 B.R. at 113)); H.R.Rep. No. 103-835, at 56 (1994), as reprinted in 1994 U.S.C.C.A.N. 3340, 3365 (“While it is permissible for a petition preparer to provide services solely limited to typing, far too many of them also attempt to provide legal advice and legal services to debtors.”). We look to state law for guidance in determining whether Frankfort has engaged in the unauthorized practice of law. See Taub v. Weber, 366 F.3d 966, 968-69 (9th Cir.2004). The parties agree that California law applies. California courts have long accepted that, in a general sense, “the practice of law ... includes legal advice and counsel and the preparation of legal instruments and contracts.” Baron v. City of L.A., 2 Cal.3d 535, 86 Cal.Rptr. 673, 469 P.2d 353, 357 (1970) (noting that this definition was adopted as early as 1922). But they have recognized too that “ascertaining whether a particular activity falls within this general definition may be a formidable endeavor.” Id. at 358; see People v. Landlords Profl Servs., 215 Cal.App.3d 1599, 1605, 264 Cal.Rptr. 548 (1989) (observing that “whether any given activity is an unauthorized practice of law depends upon the context and situation involved”). Determining whether particular assistance rendered in the preparation of legal forms constitutes the unauthorized practice is often especially challenging. Cf. Landlords Prof'l Servs., 215 Cal.App.3d at" }, { "docid": "17225981", "title": "", "text": "Conn. Retirement Plans & Trust Funds, — U.S.-, 133 S.Ct. 1184, 1192, 185 L.Ed.2d 308 (2013). Defendants challenge the third element, arguing that the transaction did not involve the purchase or sale of securities as that term is employed in the Act. “Congress’ purpose in enacting the securities laws was to regulate investments, in whatever form they are made and by whatever name they are called” and it therefore “enacted a definition of ‘security’ sufficiently broad to encompass virtually any instrument that might be sold as an investment.” Reves v. Ernst & Young, AM U.S. 56, 61, 110 S;Ct. 945, 108 L.Ed.2d 47 (1990) (emphasis in original); see also 15 U.S.C. '§ 77b(l). In special cases, some instruments “are obviously within the class Congress intended to regulate because they are by their nature investments.” Reves, 494 U.S. at 62, 110 S.Ct. 945. Stock, for example, falls into this category because it is negotiable, offers potential capital appreciation, and carries the right to dividends. Id. More commonly, however, courts do not rely solely on legal formalisms, “but instead take account of the economics of the transaction under investigation.” Reves, 494 U.S. at 61, 110 S.Ct. 945. LLC membership interests are not specifically mentioned in § 77b(l) and, “because of the sheer diversity of LLCs membership interests, therein resist.categorical classification.” United States v. Leonard, 529. F.3d 83, 89 (2d Cir.2008). Courts confronted with the task of determining whether LLC membership interests constitute a security under the Act generally evaluate whether such interests fall within the- definition of “investment contracts.” See, e.g.Affeo Invs. 2001, L.L.C. v. Proskauer Rose, L.L.P., 625 F.3d 185, 189 (5th Cir.2010); Leonard, 529 F.3d at 87; Robinson v. Glynn, 349 F.3d 166, 170 (4th Cir.2003); see also Nutek Info. Sys., Inc. v. Ariz. Corp. Comm’n, 194 Ariz. 104, 977 P.2d 826, 830 (1998) (interpreting statutory definition' of “security” substantially similar to definition contained in the Act). Plaintiffs do not argue that the LLC membérship interests at issue in this case should be evaluated in any other way. See', e.g., Robinson, '349 F.3d at 170 (considering argument that LLC membership" }, { "docid": "12934336", "title": "", "text": "the subject of the complaint arose ...” The reach of the statute is intended to be coextensive with the due process requirements of the Constitution. Batton v. Tennessee Mut. Ins. Co., 153 Ariz. 268, 736 P.2d 2 (Ariz.1987); Powder Horn Nursery, Inc. v. Soil & Plant Laboratory, Inc., 20 Ariz.App. 517, 514 P.2d 270, 272 (1973). To determine whether, in each case, an Arizona state court may exercise in personam jurisdiction over a nonresident defendant therefore requires an examination of the defendant’s contacts within the state. See Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 108-09, 107 S.Ct. 1026, 1031-32, 94 L.Ed.2d 92 (1987); Aries v. Palmer Johnson, Inc., 153 Ariz. 250, 735 P.2d 1373 (Ariz.Ct.App.1987). It should be borne in mind that due process does not require the defendant to have been physically present within the forum state before personal jurisdiction can be exercised. O’Connor, Cavanagh, Anderson, Westover, Killingworth and Beshears, P.A. v. Bonus Utah, Inc., 156 Ariz. 171,173, 750 P.2d 1374,1376 (Ariz.Ct. App.1988). Nor must the defendant engage in any activity which occurs within the forum; it is sufficient that he has “purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities.” Aries, 153 Ariz. at 255, 735 P.2d at 1378 (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)); see also Executive Properties, Inc. v. Sherman, 223 F.Supp. 1011, 1016 (D.Ariz.1963). With respect to the Arizona judgment, the pleadings, affidavits, and other materials of record amply indicate that plaintiffs have satisfied their burden of showing prima facie that personal jurisdiction existed over the defendant. Mr. Lepore’s activities in connection with the Middletown transaction appear to have been purposefully directed towards the consummation of the Prete’s investment. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958); Sullivan v. Metro Prods., Inc., 150 Ariz. 573, 577, 724 P.2d 1242, 1246, cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1986). He was clearly an active, rather" }, { "docid": "1059282", "title": "", "text": "v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973); Brandwein v. Califor nia Bd. of Osteopathic Examiners, 708 F.2d 1466, 1470 (9th Cir.1983). State and federal courts generally have subjected state bar admission restrictions to mere rational basis analysis. E.g., Bib’le v. Committee of Bar Examiners, 26 Cal.3d 548, 555, 606 P.2d 733, 737, 162 Cal.Rptr. 426, 430, cert. denied, 449 U.S. 860, 101 S.Ct. 163, 66 L.Ed.2d 77 (1980); see Hackin v. Lockwood, 361 F.2d 499, 502 (9th Cir.), cert. denied, 385 U.S. 960, 87 S.Ct. 396, 17 L.Ed.2d 305 (1966). To uphold section 6060(g), we need find only “that the distinctions drawn bear some rational relationship to a conceivable legitimate state purpose.” Bib’le, 26 Cal.3d at 555, 606 P.2d at 737, 162 Cal. Rptr. at 430. See Brandwein, 708 F.2d at 1470-71; Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756,1 L.Ed.2d 796 (1957) (“[a] State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law.”). According to a consultant to the Committee, the Board instituted the FYLSX in response to a recommendation in a 1933 survey and a recommendation by the Advisory Committee based on that survey. See Bib’le, 26 Cal.3d at 554 n. 6, 606 P.2d at 736 n. 6, 162 Cal.Rptr. at 429 n. 6. The FYLSX was originally instituted to apprise students attending unaccredited schools of their potential for eventually becoming lawyers and to curb recruiting abuses by unaccredited law schools. Id. According to the Committee’s consultant, the FYLSX serves those same purposes today. Lupert argues that summary judgment is inappropriate where the issue of whether the legal education of law students differed depending on the status of the school is still an open question. This factual issue is not sufficient to defeat the motion for summary judgment. See United States Jaycees v. San Francisco Junior Chamber of Commerce, 513 F.2d 1226, 1226" }, { "docid": "7090267", "title": "", "text": "389 U.S. 969, 88 S.Ct. 495, 19 L.Ed.2d 460 (1967), involving the admission of testimony of a defendant given at a prior trial at which he was denied his Sixth Amendment right to counsel. . See United States v. Curry, 358 F.2d 904, 912 (2 Cir.), cert. denied, 385 U.S. 873, 87 S.Ct. 147, 17 L.Ed.2d 100 (1966), noting that impeachment by involuntary statements might be treated with greater caution. . See Inge v. United States, supra, n. 10; State v. Brewton, Or., 422 P.2d 581, cert. denied, 387 U.S. 943, 87 S.Ct. 2074, 18 L.Ed.2d 1328 (1967); Annot. 89 A.L.R.2d 478 (1963) and its supplements. . The Supreme Court had previously applied constitutional rules of exclusion to statements used as substantive evidence without making any distinction between statements intended to be confessions or partially inculpatory or exculpatory. See Ashcraft v. State of Tennessee, 327 U.S. 274, 66 S.Ct. 544, 60 L.Ed. 667 (1946); Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Owen v. Arizona, 378 U.S. 574, 84 S.Ct. 1932, 12 L.Ed.2d 1041 (1964), reversing, 94 Ariz. 404, 385 P.2d 700 (1963); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). . See Commonwealth v. Padgett, 428 Pa. 229, 237 A.2d 209 (1968); Commonwealth v. Burkett, 211 Pa.Super. 299, 304, 235 A.2d 161, 163 (1968), Hoffman, J., dissenting; see also State v. Brewton, supra, n. 12; Comment, The Collateral Use Doctrine: Prom Walder To Miranda, 62 Northwestern L.Rev. 912 (1968). But see United States v. Armetta, 378 F.2d 658, 662 (2 Cir. 1967). . Developments in the Law — Confessions, 79 Harv.L.Rev. 935, 1029-1030 (1966). . See People v. Underwood, 61 Cal.2d 113, 37 Cal.Rptr. 313, 389 P.2d 937 (1964); People v. Barry, 237 Cal.App.2d 154, 46 Cal.Rptr. 727 (1965), cert. denied, 386 U.S. 1024, 87 S.Ct. 1382, 18 L.Ed.2d 464 (1967). . Petitioner also claims that he was denied due process because the charge allowed the jury to find guilt solely on the basis of the evidence of the threat. He claims a denial" }, { "docid": "2350500", "title": "", "text": "as a business. Grievance Comm. of the Bar of Fairfield County v. Dacey, 154 Conn. 129, 140, 222 A.2d 339 (1966), appeal dism’d, 386 U.S. 683, 87 S.Ct. 1325, 18 L.Ed.2d 404 (1967). The practice of law consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces the giving of legal advice on a large variety of subjects and the preparation of legal instruments covering an extensive field.... State Bar Ass’n of Connecticut v. Connecticut Bank and Trust Co., 145 Conn. 222, 234-35, 140 A.2d 863 (1958); see also Monroe v. Horwitch, 820 F.Supp. 682, 686 (D.Conn.1993) (the preparation of documents in divorce actions constitutes the practice of law under § 51-88). “[I]t is clear that § 51-88 forbids the performance of any act both in and out of court that is commonly understood to be the practice of law by persons not admitted to the bar_” Windover v. Sprague Technologies, 834 F.Supp. 560, 566 (D.Conn.1993); Grievance Committee of Bar of New Haven County v. Payne, 128 Conn. 325, 330, 22 A.2d 623 (1941). Betsos maintained a law office in Connecticut; he met with the debtors and several other clients in Connecticut; he made phone calls from his office on legal matters; his letterhead indicated he was an attorney-at-law; he advised the debtors regarding the advisability of filing a bankruptcy petition, which chapter of the code to file under, and their rights and duties under the code; he prepared and filed several bankruptcy petitions and schedules; he reviewed and prepared bankruptcy documents; he corresponded with a receiver of rents appointed under Connecticut law; he appeared in court and negotiated with creditors on his clients’ behalf; and he attended § 341(a) meetings. There are two theories under which it could be argued that Betsos may practice law: (i) Conn.Gen.Stat. § 51-88(a) does not prohibit that practice; and (ii) he may practice law notwithstanding § 51-88(a). Under the first theory, it would be argued that § 51-88(a) does not apply because Betsos limited his practice to federal law and" } ]

[ { "docid": "22154886", "title": "", "text": "a series of cases with nettlesome problems of characterization, have implored counsel to be clearer, and have made little headway. E.g., Bank of California N.A. v. Arthur Andersen & Co., 709 F.2d 1174 (7th Cir.1983). Questions of jurisdiction should be clear — to the parties, so that they do not forfeit appeals by accident, and to the courts, which ought not be confronted with enervating disputes that detract from the time available to deal with cases on their merits. The Fifth Circuit accordingly has adopted a rule that all substantive motions served within 10 days of the entry of a judgment will be treated as based on Rule 59, and therefore as tolling the time for appeal. Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.1986) (en banc). We have nothing to add to Harcon and adopt it as the rule in our court. Earlier cases anticipated this holding. E.g., Western Industries, Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983). See also 9 Moore’s Federal Practice ¶ 204.12[1], 4-67 (1985). The motion of May 2, 1985, was substantive. Rule 60(a) is designed to correct scriveners’ errors, to make the judgment carry out the original plan. See United States v. Griffin, 782 F.2d 1393 (7th Cir.1986). The Fund wanted something more than a correction. It would be a correction of a scrivener’s error to take the Fund out of the case, as the district court did. But the Fund wanted in, more than it had been so far, and wanted the intervenors excused from paying fees. This request, if granted, would have been a substantive change. Under Harcon the motion is treated as filed under Rule 59(e), just as its caption said. This leaves the question whether a Rule 59 motion filed on May 2 suspended the finality of the judgment. A timely motion filed under Rule 59 does this, see Fed.R.App.P. 4(a)(4), but successive motions do not affect the finality of the judgment. E.g., American Security Bank N.A. v. John Y. Harrison Realty Co., 670 F.2d 317 (D.C.Cir.1982); Wansor v. George" } ]

[ { "docid": "16667287", "title": "", "text": "construed as a motion brought under Rule 59(e) to alter or amend the judgment, and whether the motion was timely filed under that Rule. It is clear that Schaurer’s motion for reargument must be construed as a Rule 59(e) motion to alter or amend the judgment in this case. Although Schaurer does not label his motion for reargument as one brought under Rule 59, nor any other specific provision of the Federal Rules of Civil Procedure, the relief he requests is a reversal of the judgment entered in this action. (Petitioner’s affirmation at 17.) “Any motion that draws into question the correctness of the judgment is functionally a motion under Civil Rule 59(e), whatever its label.” 9 Moore’s Federal Practice ¶ 204.12[1], at 4-67 (1985). Accord, Fischer v. United States Department of Justice, 759 F.2d 461, 464 (5th Cir.1985); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir.1982). Accordingly, it is well settled that a motion labeled only as a motion to reconsider or to “reargue” will be treated as a Rule 59 motion to alter or amend the judgment, and will nullify any notice of appeal filed before disposition of the motion. 9 Moore’s Federal Practice ¶ 204.12[1], at 4-67 (1985); Venen v. Sweet, supra, 758 F.2d at 122; Griggs, supra, 459 U.S. at 68,103 S.Ct. at 407 (Marshall, J., dissenting opinion). See also, Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), rehearing denied, 434 U.S. 1089, 98 S.Ct. 1286, 55 L.Ed.2d 795 (1978). Nor can there be any doubt that Schaurer’s motion for reargument was timely under Rule 59, which requires him to serve the motion not later than ten (10) days after entry of the judgment. Final judgment dismissing Schaurer’s petition was entered October 28, 1985. Thus, excluding weekends and Veterans Day, Fed. R.Civ.P. 6(a), Schaurer was required to serve his Rule 59 motion not later than November 12, 1985. Schaurer did so by mailing his motion for reargument to this Court on November 6, 1985; “Service by mail is complete upon mailing”. Fed.R." }, { "docid": "397923", "title": "", "text": "59(e) and 60(b). The two rules overlap to a great extent, Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986); 11 C. Wright and A. Miller, Federal Practice and Procedure § 2817 at 110 and n. 27 (1973 and Supp.1990), and the proper characterization of ambiguous motions has been the subject of much litigation. Sanders v. Clemco Indus., 862 F.2d 161, 168 n. 11 (8th Cir.1988). Some circuits have adopted a bright line test to distinguish motions under the two rules, so that any substantive postjudgment motion that questions the correctness of the judgment and is filed within ten days of judgment shall be treated as a Rule 59(e) motion, no matter how the movant labeled it. Harcon Barge, 784 F.2d at 668-69; Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986); Moy v. Howard Univ., 843 F.2d 1504, 1505-06 (D.C.Cir.1988) (per curiam); Knowles v. Mutual Life Ins. Co., 788 F.2d 1038, 1040 (4th Cir.) (per curiam), cert. denied, 479 U.S. 948, 107 S.Ct. 433, 93 L.Ed.2d 383 (1986); Skagerberg v. Oklahoma, 797 F.2d 881, 883 (10th Cir.1986) (per curiam) (re-characterizing motion labeled “Rule 60” as a Rule 59(e) motion and consequently dismissing appeal). See generally, 9 J. Moore, B. Ward, and J. Lucas, Moore’s Federal Practice ¶ 204.12[1] at 4-72-73 (1990). This circuit has recharacterized a postjudgment motion under the ten-day rule in Jackson v. Schoemehl, 788 F.2d 1296, 1298 (8th Cir.1986), and elsewhere has categorized an unlabeled motion according to whether it asked for relief more appropriately granted under Rule 60(b) or Rule 59(e). Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062-63 (8th Cir.1986). However, we decline to apply either analysis to recharacterize Taumby’s motion. Taumby’s “Motion for Relief from an Order” employed the language of Rule 60 and referred to Rule 60 alone in the text. There is no hint in the record that anyone — Taumby, the government, or the district Court — considered the motion a Rule 59(e) motion until, after" }, { "docid": "18626202", "title": "", "text": "former Fed.R.App.P. 4(a)(4), this Court would lack jurisdiction over the entire appeal because Reeves failed to file notice of appeal after entry of the order disposing of his motion which was, liberally construed, a Fed.R.Civ.P. 59(e) motion. See Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986); see also Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988) (if service of process has not occurred, and “[i]f a judgment has been entered, a Rule 59(e) motion, or its legal equivalent, filed within 10 days after the date of entry of judgment is timely even though it has not been served on the defendants”). Although notice of appeal was filed before the effective date of the new rules of appellate procedure, this Court will apply retroactively the new rules when it is just to do so. See Burt v. Ware, 14 F.3d 256, 258-60 (5th Cir.1994). As such, under new Rule 4(a)(4), this Court has jurisdiction over the final judgment, but the new rule requires “[a] party intending to challenge an alteration or amendment of the judgement ... [to] file an amended notice of appeal” in order to appeal that alteration. See Rule 4(a)(4). The order and judgment dismissing Reeves’ complaint did not encompass any allegation or cause of action against Allen. The order denying reconsideration covered these allegations. Because Reeves failed to amend his notice of appeal, his arguments covering these allegations are not properly before this Court. AFFIRMED. . Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). . Reeves could not serve the objections on the defendants because the defendants were never served with the complaint. . The facts restated in the appellate brief resemble the facts found in the amended complaint." }, { "docid": "16496869", "title": "", "text": "Paso, Texas, and in Kansas City, Missouri.” On December 8, 1988, the district court granted Saudi’s motion and entered a final judgment dismissing Forsythe’s case. The court found that Saudi was a “foreign state” and that none of the exceptions to immunity enumerated in the FSIA applied. Alternatively, the court concluded that forum non conveniens required that the suit be prosecuted in Saudi Arabia. Forsythe promptly filed a “Motion for New Trial,” which the district court denied. He now appeals the order denying his motion for new trial. Our first task is to identify the character of Forsythe’s postjudgment motion. This determination will then define our role in reviewing the district court’s denial of the motion. Forsythe styled his postjudgment motion a “Motion for New Trial,” without designating one of the Federal Rules of Civil Procedure. Both Fed.R.Civ.P. 59(e) and Fed.R.Civ.P. 60(b) may offer a party the relief that Forsythe sought: a change in the court’s judgment. The rules differ in two important respects, however. First, a Rule 59(e) motion must be served no later than ten days after entry of the judgment. Rule 60(b) motions may be filed during a much longer period of time — up to one year after judgment for certain stated grounds, and “within a reasonable time” for all remaining grounds. Second, a Rule 59(e) motion to alter or amend a judgment tolls the time period for filing a notice of appeal from the judgment; a Rule 60(b) motion does not. Fed.R.App.P. 4(a)(4). Our en banc decision in Harcon Barge Co. v. D & G Boat Rentals, Inc. established a bright-line test for characterizing a motion that questions the substantive correctness of a judgment. A motion served within ten days after judgment, which in effect requests the district court to alter or amend the judgment, will be treated as a Rule 59(e) motion. Harcon Barge, 784 F.2d 665, 667-69 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The district court entered its order and final judgment on December 8, 1988. Forsythe served his motion within the ten-day time limit" }, { "docid": "15815881", "title": "", "text": "54 L.Ed.2d 521 (1978). Initially, it must be noted that the Godwins’ March 3 motion is labeled a “Motion for Reconsideration” and it is not specifically based on any particular rule of civil procedure. Thus, the nature of the motion is unclear; it could potentially be classified as a motion under either Fed.R.Civ.P. 59(e) or 60(b). Rule 59(e) authorizes motions to alter or amend a judgment or an order; rule 60(b) authorizes motions which alleviate the effects of a judgment or an order on the basis of equitable interests. Our recent en banc opinion in Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.), cert. denied, — U.S. -, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986), sets out a standard to determine how a post-judgment motion should be classified. Harcon Barge states that: [a]ny post-judgment motion to alter or amend the judgment served within ten days after the entry of judgment, other than a motion to correct purely clerical errors covered by Rule 60(a), is within the unrestricted scope of Rule 59(e) and must, however designated by the mov-ant, be considered as a Rule 59(e) motion for purposes of Fed.R.App.P. 4(a)(4). If, on the other hand, the motion asks for some relief other than correction of a purely clerical error and is served after the ten-day limit, then Rule 60(b) governs its timeliness and effect. 784 F.2d at 667. We recently stated that this “bright line” rule is applicable to any interplay between rules 59(e) and 60(b) and appellate rule 4(a). Huff v. International Longshoremen’s Association, Local No. 2b, 799 F.2d 1087, 1090 n. 5 (5th Cir.1986). Under Harcon Barge the Godwins’ March 3 motion for reconsideration must be classified as a rule 60(b) motion. The motion was filed over one month after the January 30 order of dismissal, and it requested a reconsideration of the entire order rather than seeking only a clerical correction. In their motion for reconsideration the Godwins argued that they lacked fair notice that they would be required to seek review under the APA and that the district" }, { "docid": "16496870", "title": "", "text": "than ten days after entry of the judgment. Rule 60(b) motions may be filed during a much longer period of time — up to one year after judgment for certain stated grounds, and “within a reasonable time” for all remaining grounds. Second, a Rule 59(e) motion to alter or amend a judgment tolls the time period for filing a notice of appeal from the judgment; a Rule 60(b) motion does not. Fed.R.App.P. 4(a)(4). Our en banc decision in Harcon Barge Co. v. D & G Boat Rentals, Inc. established a bright-line test for characterizing a motion that questions the substantive correctness of a judgment. A motion served within ten days after judgment, which in effect requests the district court to alter or amend the judgment, will be treated as a Rule 59(e) motion. Harcon Barge, 784 F.2d 665, 667-69 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The district court entered its order and final judgment on December 8, 1988. Forsythe served his motion within the ten-day time limit prescribed in Rule 59(e). Consequently, his motion must be construed as a Rule 59(e) motion to alter or amend the order and concomitant judgment dismissing his case. We review the district court’s denial of a Rule 59(e) motion under an abuse of discretion standard. Youmans v. Simon, 791 F.2d 341, 349 (5th Cir.1986). The FSIA is the exclusive means by which a foreign state, as that term is defined in the Act, may be sued in a United States federal court. Under the FSIA, a foreign state is immune from suit — and the district court lacks jurisdiction — unless one of the specific exceptions contained in sections 1605-1607 is found to apply. 28 U.S.C. § 1604. Prior to the dismissal of his case, Forsythe did not attempt to persuade the court that any of the FSIA exceptions applied to divest Saudi of immunity in this case. He proffered neither legal arguments nor evidence outside the pleadings to bolster the jurisdictional facts that the court could consider in ruling on Saudi’s motion to dismiss. Moreover," }, { "docid": "18790068", "title": "", "text": "§ 2651 at 9 (1983); 6 Moore's Federal Practice H 54.02 at 54-23 (1986). A Fed.R.Civ.P. 59(e) motion “shall be served not later than 10 days after entry of the judgment.” For these purposes, “entry of the judgment” is when the judgment is entered on the docket, or docketed, in this case, May 12, 1986. Fed.R.Civ.P. 79(a); Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 746 F.2d 278, 282 (5th Cir.1984), rehearing en banc ordered as to part III, rehearing otherwise denied, 760 F.2d 86 (5th Cir.1985), opinion en banc, 784 F.2d 665 (5th Cir.1986). Under Fed.R. Civ.P. 6(a), in computing time, the day from which the period of time begins to run is not included, and the last day is included, unless it is a Saturday, Sunday, or legal holiday, in which event the allowed time runs until the next day which is not such; and, under the rule as amended effective August 1, 1985, where an allowed period of time is less than eleven days, intermediate Saturdays, Sundays, and legal holidays are excluded in the computation of time. Accordingly, a motion under Fed.R.Civ.P. 59(e) directed to the district court’s referenced “Order to Arbitrate and to Stay” would have been timely if served on or before May 27, 1986. Hence, plaintiff-appellee’s motion for reconsideration, which was served on or before May 23, 1986 (see Fed.R.Civ.P. 5(b)) was timely for purposes of Fed.R.Civ.P. 59(e). Since it was timely, that motion is treated as a motion to alter or amend the judgment under Fed.R.Civ.P. 59(e) for purposes of Fed.R.App.P. 4(a)(4)(iii). Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.1986). See also Williams v. Bolger, supra. Therefore, when the notice of appeal of defendants-appellants was filed, there was pending an undisposed of motion to alter or amend the judgment from which the appeal was sought to be taken, and the notice of appeal is thus a nullity under Fed.R.App.P. 4(a)(4). Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.1986); Williams v. Bolger, supra. The appeal" }, { "docid": "10045861", "title": "", "text": "motion could not have tolled the running of the appeals’ limitation period because it was filed more than 10 days after the original judgment. Fed.R. App.P. 4(a); see Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en banc), cert. denied sub nom. Southern Pacific Transportation Co. v. Harcon Barge Co., — U.S. -, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The district court ruled on Falstaff’s motion on December 18. Trinity filed its motion for new trial and/or relief from judgment or order on December 30, for legal purposes within ten days of the court’s order. See Fed.R.Civ.P. 6(a). Trinity styled its motion as both a Rule 59(e) motion and Rule 60(b) motion. Under the above analysis, however, we can treat it only as an additional motion relating to the original judgment and with no effect as to the running of the time for appeals. It is solely a Rule 60(b) motion that asks for relief from the judgment. The characterization of Trinity’s motion would not change if we were to interpret Falstaff’s motion to clarify as a prematurely-filed Rule 59(e) motion relating to the Judgment on Remand. In that case, Falstaff’s motion would have extended the allowable appeals period to 30 days after the entry of the order disposing of that motion. Fed.R.App.P. 4(a)(4). When the court entered that order on December 18, Trinity had 30 days to appeal the Judgment on Remand. Trinity instead filed a motion for a new trial and/or relief from judgment. Trinity argues that its motion functions as a Rule 59(e) motion because it was filed within 10 days of the district court’s order, and therefore its motion again extended the appellate limitations period. We have already rejected such a contention. “A motion to reconsider an order disposing of a motion of the kind enumerated in Rule 4(a) does not again terminate the running of the time for appeal.” Wansor v. George Hantscho Co., Inc., 570 F.2d 1202, 1206 (5th Cir.) (footnote omitted), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978). In" }, { "docid": "10889774", "title": "", "text": "by Harrell, except for the plaintiffs’ conclusory assertions that such a pattern existed. We do not find evidence in the record of even one unconstitutional action by Harrell. Absent proof of a pattern of constitutional violations, there is no basis for imposing liability on Berry and Harrison County for failing to prevent them. We agree with the district court that the Rich-ardsons have produced insufficient evidence of any municipal custom or policy to survive summary judgment for the defendants. We AFFIRM the district court’s judgment. . Richardson v. Oldham, 811 F.Supp. 1186 (E.D.Tex.1992). . 2 Rec. 409-11. . The informant's affidavit described a meeting with a female who was shorter, weighed fifty to sixty pounds less, was lighter in complexion, and had a different hair color and style from Rose Richardson, the only black female involved in this case. .2 Rec. 400. . Fed.R.Civ.P. 59(e). . See, e.g., Charles L.M. v. Northeast Indep. Sch. Dist., 884 F.2d 869, 870 (5th Cir.1989); Benson v. Bearb, 807 F.2d 1228, 1229 (5th Cir.1987) (per curiam). To be more precise, a “motion for reconsideration\" is deemed to arise under Rule 59 if filed within Rule 59's ten-day time limit. See Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 669 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). . “A notice of appeal filed before the disposition of any of the above motions [including Rule 59 motions] shall have no effect\". Fed.R.App. P. 4(a)(4); see, e.g., Treuter v. Kaufman County, Tex., 864 F.2d 1139, 1142 (5th Cir.1989). We have no need to address the changes in this rule resulting from the December 1, 1993 amendment to Fed. R.App.P. 4(a)(4). See 147 F.R.D. 294-98; cf. Burt v. Ware, 14 F.3d 256 (5th Cir.1994). . Fed.R.App. P. 4(a)(4); see, e.g., Harrell v. Dixon Bay Transp. Co., 718 F.2d 123, 126-27 (5th Cir.1983). . Although served 12 calendar days after the entry of judgment, this motion was nonetheless served within the ten days required by Fed. R.Civ.P. 59(e), because of the requirement of Fed.R.Civ.P." }, { "docid": "15815880", "title": "", "text": "seeking review pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., 701 et seq. The district court also held that a de novo review of the FSLIC’s determination was foreclosed by our decision in North Mississippi Savings and Loan Association v. Hudspeth, 756 F.2d 1096 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 790, 88 L.Ed.2d 768 (1986). Consequently, the court dismissed the action for lack of subject matter jurisdiction. On March 3 the Godwins made a “motion for reconsideration,” which the district court denied on March 5. On April 4 the Godwins filed a notice of appeal from the district court’s denial of its motion to reconsider. II. A notice of appeal from a trial judgment must be filed within the time limitations of Fed.R.App.P. 4(a). In this case, because the government was a party, the appropriate appeals period was 60 days. The time limitation imposed by rule 4(a) is “mandatory and jurisdictional.” Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Initially, it must be noted that the Godwins’ March 3 motion is labeled a “Motion for Reconsideration” and it is not specifically based on any particular rule of civil procedure. Thus, the nature of the motion is unclear; it could potentially be classified as a motion under either Fed.R.Civ.P. 59(e) or 60(b). Rule 59(e) authorizes motions to alter or amend a judgment or an order; rule 60(b) authorizes motions which alleviate the effects of a judgment or an order on the basis of equitable interests. Our recent en banc opinion in Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.), cert. denied, — U.S. -, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986), sets out a standard to determine how a post-judgment motion should be classified. Harcon Barge states that: [a]ny post-judgment motion to alter or amend the judgment served within ten days after the entry of judgment, other than a motion to correct purely clerical errors covered by Rule 60(a), is within the unrestricted" }, { "docid": "16667286", "title": "", "text": "with approval the description of Professor James Moore of the post-1979 effect of a Rule 59 motion on a previously filed notice of appeal: “The appeal simply self-destructs.” Griggs, supra, 459 U.S. at 61,103 S.Ct. at 403, citing 9 Moore’s Federal Practice¶ 204.12[1] at 4-65 n. 17 (2d Edition 1982). Since the purpose of Appellate Rule 4 is “to prevent unnecessary appellate review” of a question which can be settled by the District Court on a timely motion to amend the judgment, Griggs, 459 U.S. at 59, 103 S.Ct. at 403, the rule applies to a motion filed “by any party”, Fed.R.App.P. 4(a)(4), and is therefore applicable even in cases, such as this one, where the Rule 59 motion to amend the judgment is filed by the same party who had previously filed a notice of appeal. Bordallo v. Reyes, 763 F.2d 1098, 1101 (9th Cir.1985); Venen v. Sweet, 758 F.2d 117, 122 at n. 6 (3rd Cir. 1985). The jurisdictional question in this case, therefore, turns on whether Schaurer’s motion for “reargument” should be construed as a motion brought under Rule 59(e) to alter or amend the judgment, and whether the motion was timely filed under that Rule. It is clear that Schaurer’s motion for reargument must be construed as a Rule 59(e) motion to alter or amend the judgment in this case. Although Schaurer does not label his motion for reargument as one brought under Rule 59, nor any other specific provision of the Federal Rules of Civil Procedure, the relief he requests is a reversal of the judgment entered in this action. (Petitioner’s affirmation at 17.) “Any motion that draws into question the correctness of the judgment is functionally a motion under Civil Rule 59(e), whatever its label.” 9 Moore’s Federal Practice ¶ 204.12[1], at 4-67 (1985). Accord, Fischer v. United States Department of Justice, 759 F.2d 461, 464 (5th Cir.1985); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir.1982). Accordingly, it is well settled that a motion labeled only as a motion to reconsider or to “reargue” will be treated as a Rule" }, { "docid": "7520702", "title": "", "text": "correctness of a judgment is properly construed as a motion to alter or amend judgment under Fed.R.Civ.P. 59(e). Venable v. Haislip, 721 F.2d 297, 299 (10th Cir.1983); Miller v. Leavenworth-Jefferson Electric Cooperative, Inc., 653 F.2d 1378, 1380 (10th Cir.1981); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.1986). Petitioner’s motion/notice of appeal, which was served within ten days of the district court’s denial of the § 2254 petition for a writ of habeas corpus, questioned the correctness of the district court’s dismissal of his action. Consequently, petitioner’s mischaracterized motion for Rule 60 relief should have been construed as a timely Rule 59(e) motion. Venable, 721 F.2d at 299. Under Rule 4(a)(4), a timely Rule 59(e) motion tolls the time for filing a notice of appeal from a district court judgment. Clayton v. Douglas, 670 F.2d 143, 144 (10th Cir.), cert. denied, 457 U.S. 1109, 102 S.Ct. 2911, 73 L.Ed.2d 1319 (1982). A notice of appeal filed while a timely Rule 59(e) motion is pending is ineffective to confer jurisdiction on a court of appeals. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982). Likewise, a notice of appeal filed before a timely Rule 59(e) motion is also ineffective to confer jurisdiction. Id. Accordingly, we conclude that when a timely Rule 59(e) motion and a notice of appeal are combined in one document the notice of appeal is premature and has no effect. See Portis v. Harris County, Texas, 632 F.2d 486 (5th Cir.1980) (Rule 59 motion and notice of appeal were filed in the same document). After receiving a ruling on the timely motion, the appellant is required to file a new notice of appeal in accordance with Fed.R.App.P. 4(a)(1). In this case, the district court’s judgment became final for appeal purposes only after the district court’s disposition of the Rule 59(e) motion. Because petitioner failed to file a new notice of appeal after disposition of the Rule 59(e) motion, we do not have jurisdiction to consider this appeal. See Browder v. Director, Dept." }, { "docid": "7520701", "title": "", "text": "proceed on appeal in forma pauperis and address the issue of how we must construe the combination document under the standards set forth in Fed.R.App.P. 4(a). Fed.R.App.P. 4(a)(1) requires a party to file a notice of appeal within thirty days of the entry of judgment. Fed.R.App.P. 4(a)(4) further provides that “if a timely motion ... is filed in the district court under [Fed.R.Civ.P.] 50(b) ..., 52(b) ..., or 59 ... the time for appeal ... shall run from the entry of the order granting or denying ... such motion.” A notice of appeal filed before the disposition of any of the above motions shall have no effect, and a new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. Id. Although petitioner stated in his alternative motion/notice of appeal document that he sought Rule 60 relief, petitioner’s characterization is not controlling. Rather, regardless of how it is characterized, a post-judgment motion made within ten days of the entry of judgment that questions the correctness of a judgment is properly construed as a motion to alter or amend judgment under Fed.R.Civ.P. 59(e). Venable v. Haislip, 721 F.2d 297, 299 (10th Cir.1983); Miller v. Leavenworth-Jefferson Electric Cooperative, Inc., 653 F.2d 1378, 1380 (10th Cir.1981); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.1986). Petitioner’s motion/notice of appeal, which was served within ten days of the district court’s denial of the § 2254 petition for a writ of habeas corpus, questioned the correctness of the district court’s dismissal of his action. Consequently, petitioner’s mischaracterized motion for Rule 60 relief should have been construed as a timely Rule 59(e) motion. Venable, 721 F.2d at 299. Under Rule 4(a)(4), a timely Rule 59(e) motion tolls the time for filing a notice of appeal from a district court judgment. Clayton v. Douglas, 670 F.2d 143, 144 (10th Cir.), cert. denied, 457 U.S. 1109, 102 S.Ct. 2911, 73 L.Ed.2d 1319 (1982). A notice of appeal filed while a timely Rule 59(e) motion is pending is ineffective to confer" }, { "docid": "10889775", "title": "", "text": "precise, a “motion for reconsideration\" is deemed to arise under Rule 59 if filed within Rule 59's ten-day time limit. See Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 669 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). . “A notice of appeal filed before the disposition of any of the above motions [including Rule 59 motions] shall have no effect\". Fed.R.App. P. 4(a)(4); see, e.g., Treuter v. Kaufman County, Tex., 864 F.2d 1139, 1142 (5th Cir.1989). We have no need to address the changes in this rule resulting from the December 1, 1993 amendment to Fed. R.App.P. 4(a)(4). See 147 F.R.D. 294-98; cf. Burt v. Ware, 14 F.3d 256 (5th Cir.1994). . Fed.R.App. P. 4(a)(4); see, e.g., Harrell v. Dixon Bay Transp. Co., 718 F.2d 123, 126-27 (5th Cir.1983). . Although served 12 calendar days after the entry of judgment, this motion was nonetheless served within the ten days required by Fed. R.Civ.P. 59(e), because of the requirement of Fed.R.Civ.P. 6(a) that intervening weekends be excluded from the calculation. Because the motion was served within ten days, we will treat it as a motion under Rule 59. See Goodman v. Lee, 988 F.2d 619, 622-23 (5th Cir.1993) (per curiam). We note for counsel's benefit, however, that the newly proposed Fed.R.Civ.P. 59(e) requires filing, not merely serving, the motion within ten days. See 150 F.R.D. 399. . This was the rule in effect at the time of the district court's judgment and the rule on which the parties relied, but it has since been repealed. See Fed.R.App.P. 4(a)(4), 147 F.R.D.. 296-98. . See 6A James W. Moore & Jo D. Lucas, Moore's Federal Practice ¶ 59.14 (2d ed. 1993). . We have previously held, without explicit discussion of the matter, that a plaintiff's motion for reconsideration as to one defendant tolled the appeals clock even as to defendants not named in ' the motion. See, e.g., Willie v. Continental Oil Co., 784 F.2d 706 (5th Cir.1986) (en banc), dismissing appeal of 746 F.2d 1041 (5th Cir.1984);" }, { "docid": "7799865", "title": "", "text": "the proper procedures in filing its notice of appeal. An appeal taken under the collateral order doctrine is subject to all the usual appellate rules and time periods, including Rule 4 of the Federal Rules of Appellate Procedure. Kenyatta v. Moore, 744 F.2d 1179, 1186-87 (5th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2141, 85 L.Ed.2d 498 (1985); see also C. Wright,' A. Miller & E. Cooper, 15A Federal Practice and Procedure § 3911, at 357 (2d ed. 1992). Under Rule 4(a)(4), a timely filed motion to alter or amend the judgment under Rule 59 of the Federal Rules of Civil Procedure nullifies a notice of appeal filed before the disposition of the motion. Under our decision in Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986), any motion filed within ten days of the entry of judgment which calls into question the substantive validity of the judgment is, however styled, treated as a motion to alter or amend the judgment under Rule 59 and triggers the FRAP 4(a)(4) rule described above. 784 F.2d at 669-70. Repsa argues that Pemex’s motion for reconsideration (June 21) qualifies as a Rulé 59 motion under Harcon Barge, thus rendering the subsequently-filed notice of appeal (July 11) a nullity. Since Pemex’s petition in this court for an interlocutory appeal was denied, Repsa contends, we have no appellate jurisdiction. Pemex attempts to avoid FRAP 4(a)(4) in two ways. First, it argues that its June 21 motion for reconsideration was not the kind of motion that triggers FRAP 4(a)(4) because, Harcon Barge notwithstanding, only those motions mentioned in Rule 4(a)(4) nullify a subsequently-filed notice of appeal. Pemex contends that the motion it filed on June 21 was neither a Rule 59(e) nor a Rule 60 motion, but instead was a motion “filed in an effort to invoke the trial court’s plenary power over interlocutory orders.” We disagree. The motion is styled “Motion for Reconsideration” and asserts that Pemex had expected the district court to" }, { "docid": "18790069", "title": "", "text": "holidays are excluded in the computation of time. Accordingly, a motion under Fed.R.Civ.P. 59(e) directed to the district court’s referenced “Order to Arbitrate and to Stay” would have been timely if served on or before May 27, 1986. Hence, plaintiff-appellee’s motion for reconsideration, which was served on or before May 23, 1986 (see Fed.R.Civ.P. 5(b)) was timely for purposes of Fed.R.Civ.P. 59(e). Since it was timely, that motion is treated as a motion to alter or amend the judgment under Fed.R.Civ.P. 59(e) for purposes of Fed.R.App.P. 4(a)(4)(iii). Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.1986). See also Williams v. Bolger, supra. Therefore, when the notice of appeal of defendants-appellants was filed, there was pending an undisposed of motion to alter or amend the judgment from which the appeal was sought to be taken, and the notice of appeal is thus a nullity under Fed.R.App.P. 4(a)(4). Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.1986); Williams v. Bolger, supra. The appeal is dismissed for want of jurisdiction. DISMISSED. . Defendants-appellants contend that this notice of appeal also serves to bring up their complaint that the district court’s referenced order improperly denied their motion to compel arbitration of plaintiff-appellee’s RICO claims; plain tiff-appellee disputes this; we do not reach that issue. . The docket sheet, just below the entry for plaintiff-appellee’s May 23 motion for reconsideration, contains the notation \"M/D Jun 16, 1986 by clerk.” We do not know the meaning of this notation, although it is conceivable that \"M/D” in this context may be an abbreviation for \"motion denied.” However, even if we were to treat the May 23 motion of plaintiff-appellee for reconsideration as having been denied on June 16, 1986 (when this entry might indicate such action by the clerk), instead of on July 8, 1986 (when it appears the district court denied the motion), that would not in any way alter our conclusions herein, inasmuch as in any event plaintiff-appellee’s motion would have remained undisposed of until a time after the filing of" }, { "docid": "12088044", "title": "", "text": "The Dysons did not file a second notice of appeal from the July 25 order of the district court denying their motion to amend. II. Initially, we note that none of the parties have raised the question of jurisdiction of this Court on appeal. Nevertheless, we must examine the basis of our jurisdiction over this appeal whether on our own motion or at the request of one of the parties. In re Lift & Equipment Service, Inc., 816 F.2d 1013, 1015 (5th Cir.1987). Federal Rule of Appellate Procedure 4(a)(4) provides in pertinent part: If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party ... under Rule 59 to alter or amend the judgment; ... the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing. In the instant appeal, the issue becomes whether the motion filed by the Dysons to amend their complaint constitutes a motion to alter or amend the June 16, 1988, judgment within the context of Fed.R.Civ.P. 59. To answer the above query, it is necessary to reference the en banc decision of this Court in Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). In Harcon Barge Co., this Court stated that “[i]f a motion falls within the scope of Rule 59(e), and it is timely served within ten days after entry of judgment as that rule requires, then the court must consider it as a Rule 59(e) motion for the purposes of Fed.R.App.P. 4(a)(4), regardless of how it is styled.” Harcon Barge Co., 784 F.2d" }, { "docid": "18790067", "title": "", "text": "motion to compel arbitration of plaintiff-appellee’s 1934 Act claims. This notice of appeal is the only notice of appeal contained in the record. At the time defendants-appellants filed their notice of appeal, plaintiff-appellee’s motion for reconsideration filed May 23 was still pending and undisposed of. Indeed, it appears that plaintiff-appellee’s May 23 motion was not ruled on by the district court until July 8, 1986, when the court denied it. Under Fed.R.App.P. 4(a)(4), “[a] notice of appeal filed before the disposition of” a “timely filed motion ... to alter or amend the judgment” under Fed.R.Civ.P. 59(e) “shall have no effect.” An appealable order, such as the district court’s above-referenced “Order to Arbitrate and to Stay,” is a “judgment” for puiposes of Fed.R.Civ.P. 59(e). See Fed.R.Civ.P. 54(a); Financial Services Corporation of the Midwest v. Weindruch, 764 F.2d 197, 198 (7th Cir. 1985) (“an order granting a preliminary injunction is a judgment within the meaning of” Rule 59(e)); United States v. Rogers Transportation, Inc., 751 F.2d 635 (3d Cir.1985); Wright, Miller & Kane, Federal Practice & Procedure § 2651 at 9 (1983); 6 Moore's Federal Practice H 54.02 at 54-23 (1986). A Fed.R.Civ.P. 59(e) motion “shall be served not later than 10 days after entry of the judgment.” For these purposes, “entry of the judgment” is when the judgment is entered on the docket, or docketed, in this case, May 12, 1986. Fed.R.Civ.P. 79(a); Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 746 F.2d 278, 282 (5th Cir.1984), rehearing en banc ordered as to part III, rehearing otherwise denied, 760 F.2d 86 (5th Cir.1985), opinion en banc, 784 F.2d 665 (5th Cir.1986). Under Fed.R. Civ.P. 6(a), in computing time, the day from which the period of time begins to run is not included, and the last day is included, unless it is a Saturday, Sunday, or legal holiday, in which event the allowed time runs until the next day which is not such; and, under the rule as amended effective August 1, 1985, where an allowed period of time is less than eleven days, intermediate Saturdays, Sundays, and legal" }, { "docid": "22271366", "title": "", "text": "brief in support of his motion to proceed in forma pauperis on March 8, 1993. II. Analysis As a threshold matter, we must determine whether we have jurisdiction to entertain the appeal. See, e.g., Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) (This court has the duty to examine the basis of its jurisdiction on its own motion if necessary.); Fitzpatrick v. Texas Water Comm’n, 803 F.2d 1375, 1376 (5th Cir.1986) (same). In the instant ease, our jurisdiction depends upon the applicability of the recent amendments to the Federal Rules of Appellate Procedure, specifically Federal Rule of Appellate Procedure 4(a)(4). Under the rule in effect prior to December 1, 1993, Burt’s post-judgment “Motion for Relief from Judgment of Summary Proceedings,” served within ten days after judgment, would clearly have nullified his notice of appeal. See Fed.RAppP. 4(a)(4) (1979 version); see also Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir.1986) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986) (This court treats a motion which calls into question the correctness of the judgment, does not seek relief for purely clerical errors, and is served within ten days after the entry of judgment, as a Rule 59(e) motion for purposes of Rule 4(a)(4)); Woodham v. American Cystoscope Co., 335 F.2d 551, 554-56 (5th Cir.1964) (even motions captioned as Rule 60(b) motions are treated as a Rule 59(e) motion for purposes of Rule 4(a)(4)’s precursor if filed within ten days of judgment). Rule 4(a)(4) provided that a timely post-judgment motion under Federal Rules of Civil Procedure 50(b), 52(b), or certain provisions of Rule 59, would void any notice of appeal filed before disposition of that motion. Thus, unless the appellant filed a new notice of appeal within the requisite time-period after entry of the order disposing of the post-judgment motion, the court of appeals was without jurisdiction to hear the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982); Barnett v. Petro-Tex Chemical Corp., 893 F.2d 800, 804 (5th" }, { "docid": "12088045", "title": "", "text": "be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing. In the instant appeal, the issue becomes whether the motion filed by the Dysons to amend their complaint constitutes a motion to alter or amend the June 16, 1988, judgment within the context of Fed.R.Civ.P. 59. To answer the above query, it is necessary to reference the en banc decision of this Court in Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). In Harcon Barge Co., this Court stated that “[i]f a motion falls within the scope of Rule 59(e), and it is timely served within ten days after entry of judgment as that rule requires, then the court must consider it as a Rule 59(e) motion for the purposes of Fed.R.App.P. 4(a)(4), regardless of how it is styled.” Harcon Barge Co., 784 F.2d at 668. In the instant appeal, the motion of the Dysons to amend their complaint was filed on June 23, 1988, within ten days of the final order of the district court granting the summary judgment motions of the defendant oil companies. As to whether the motion of the Dysons to amend their complaint falls within the purview of Rule 59(e), it is noted that ‘[a]ny motion that draws into question the correctness of the judgment is functionally a motion under Civil Rule 59(e), whatever its label.’ Virtually every circuit court has held that a motion that ‘calls into question the correctness of a judgment should be treated as a motion under Rule 59(e), however it is styled.’ Id. at 669-70 (citations and footnotes omitted). Persuaded that, by seeking to amend their complaint to assert a different theory of recovery, the Dysons were in effect calling into question the correctness of the judgment by the district court granting summary judgment in favor of the defendant oil companies, we conclude that the Dysons’ motion to amend" } ]

[ { "docid": "8073239", "title": "", "text": "the fact that NWA had a stronger case against IAM than it has against ALPA is no reason for refusing to require the parties to submit the issue to arbitration. It may mean that NWA will not prevail in this ease as it did in the earlier one, but “[a]n order to arbitrate * * * 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.” See, United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). We are reluctant to further discuss whether or not ALPA has implicitly agreed to refrain from the conduct of the type it engaged in here. To do so might leave the arbiter with the impression that we have formed a view as to how the matter should be decided, and this we do not want to do. See, Local 174 Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co., 369 U.S. 95, 106, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). The trial court urges: Northwest Airlines, Inc. v. Air Line Pilots Association, 325 F.Supp. 994 (D. Minn., Dec. 22, 1970). “ * * if there is a no strike clause it will be by operation of the ‘minor dispute’ provision of the Railway Labor Act — a statutory provision enacted by Congress. Interpretation of Federal statutes is reserved to the Federal Courts and Administrative Agencies. It is not an appropriate function of a labor arbitrator. * * *” We agree that the interpretation of federal statutes is reserved to the federal courts and administrative agencies, see, Detroit and Toledo Shore Line R. Co. v. Transportation Union, 396 U.S. 142, 158, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969), and is not an appropriate function of a System Adjustment Board. But we have not asked the Board to undertake an improper function" } ]

[ { "docid": "15220903", "title": "", "text": "are neither questions of fact nor issues of contractual interpretation to resolve, an arbitrator skilled in pension and labor matters would have no superior expertise to offer. Second, under the specific circumstances present here, it is unlikely in the extreme that requiring arbitration will promote judicial economy by resolving extrajudicially the dispute between Stockton and the Fund. Under the statute both the Company and the Fund are entitled to bring an action to vacate the arbitrator’s award. 29 U.S.C. § 1401(b)(1). In a dispute like this one, it seems highly improbable that a judicial action to vacate the award will not immediately follow on the heels of the arbitrator’s decision. Second, requiring exhaustion under the circumstances presented here would not promote judicial economy even in the short-term. The district court would still have had to consider Stockton’s other arguments to prevent the Fund from collecting withdrawal liability. For the foregoing reasons, we conclude that the district court properly addressed the issue presented here on the merits. It is to this remaining issue that we now turn. III. On the issue of statutory interpretation, we are constrained to conclude that the district court erred in construing the governing statutory provision. Section 1383(a)(1) defines “complete withdrawal” from a plan as occurring when an employer “permanently ceases to have an obligation to contribute under the plan.” “Obligation to contribute” in turn is statutorily defined as “an obligation to contribute arising under one or more collective bargaining agreements.” 29 U.S.C. § 1392(a)(1). In this case the district court held that Stockton completely withdrew from the Fund on April 14, 1980, when Stockton dispatched the telegram expressing its intent to withdraw as of April 30, 1980. The district court itself acknowledged, however, that Stockton was contractually obligated to contribute to the Fund until April 30, 1980, under the existing collective bargaining agreement that expired on that date. According to the clear definition contained in section 1392(a)(1), Stockton plainly had an “obligation to contribute” to the Fund until April 30, 1980. Thus, under the definition of complete withdrawal in section 1383(a)(1), the Company could not have" }, { "docid": "16202247", "title": "", "text": "then, is whether the trial court was correct in that holding. The defendants argue that the question of unreasonable delay is one requiring statutory interpretation and is therefore not suitable for resolution by an arbitrator rather than a court. They also argue that the purpose of the arbitration requirement is to resolve disputes as to the amount claimed or the method used in calculating the amount and that the dispute in this case involves neither of those issues. The pension plan trustees argue that the essence of the laches claim — that the trustees did not notify the defendants “[a]s soon as practicable,” see 29 U.S.C. § 1399(b)(1), after the withdrawal of Williams Meat from the multi-employer pension plan — is a factual dispute and therefore within the purview of matters amenable to resolution by an arbitrator. They also argue that this defense was available to the defendants by the time arbitration had to be requested and that the defendants therefore have no good excuse for not seeking arbitration on that point. We agree with the pension plan trustees and affirm the trial court on this issue. The courts holding that all defenses are barred if not initially arbitrated cite several reasons for so ruling — the congressional preference for a nonjudicial, possibly speedier resolution for disputes, as reflected by the establishment of an arbitration scheme; the fact that 29 U.S.C. § 1401 declares that “[a]ny dispute” concerning a determination related to a withdrawal liability assessment is to be arbitrated; the arbitrator’s likely expertise in pension matters; the consideration that factual questions are especially amenable to resolution by an arbitrator; and the promotion of judicial economy and efficient use of judicial resources by the potential for resolution of most issues outside the court system. See, e.g., Robbins v. Admiral Merchants Motor Freight, Inc., 846 F.2d 1054, 1056-57 (7th Cir.1988), and Teamsters Pension Trust Fund v. Align Transportation Co., 832 F.2d 502, 504-06, 505 n. 4 (9th Cir.1987). Even the cases allowing certain defenses to bypass arbitration state that the existence of a question of statutory interpretation is not, by itself," }, { "docid": "15220895", "title": "", "text": "the Fund filed this suit, contending that even if the Company were entitled to arbitration, the Fund nonetheless had the right to payment of withdrawal liability while arbitration was pending. 29 U.S.C. § 1401(d). Stockton responded that, to the contrary, the applicable statutory provision, 29 U.S.C. § 1401(b)(1), demonstrated that once a party requested arbitration, no payments were owing, and that the Fund’s acceleration of the amount due pending arbitration was inconsistent with the legislative history of MPPAA and its interpretation by the PBGC. Stockton further contended that it had withdrawn from the Fund prior to the retroactive liability date of April 29, 1980 and that even if the Company were held to have withdrawn after April 29, 1980, MPPAA’s imposition of retroactive liability was so Draconian as to violate requisite due process guarantees of the Fifth Amendment. The district court ruled that Stockton had in fact completely withdrawn from the Fund prior to the retroactive liability date of April 29, 1980. Interpreting the critical statutory provision in this case, 29 U.S.C. § 1383(a)(1), which defines “complete withdrawal” as occurring when an employer “permanently ceases to have an obligation to contribute under the plan,” the district court concluded that Stockton’s obligation ceased when the Company notified the Fund on April 14, 1980 of its intent to withdraw. The court concluded that since the withdrawal was effected by this notification prior to the retroactive effective date of the MPPAA, Stockton had incurred no withdrawal liability; accordingly, the court determined that the other issues raised by Stockton need not be reached. II. A. The threshold issue before us is whether the district court erred in declining to refer this dispute to arbitration, rather than reaching and deciding the central issue of statutory interpretation in this case. We conclude that, under the specific and undisputed circumstances of this case, the district court’s declination was proper. MPPAA provides that “any dispute between an employer and the plan sponsor ... concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration.” 29 U.S.C. § 1401. The Fund, which was" }, { "docid": "469250", "title": "", "text": "desire to have disputes concerning withdrawal liability resolved through arbitration. This obligation is not dependent upon the Corporation’s intention to submit to arbitration, but rather is imposed on the Corporation under MPPAA. As the Ninth Circuit recently observed: the duty to arbitrate [arises] not from an agreement of the parties, but from the statute. The matters to be resolved by arbitration are not to be determined by the parties’ intention, but by the intention of Congress.... [T]he statute states unambiguously that “[a]ny dispute between an employer and the plan sponsor ... concerning a determination made under sections 1381 through 1399 ... shall be resolved through arbitration,” and Congress clearly intended exactly what those words import. Teamsters Pension Trust Fund v. Allyn Transportation Co., 832 F.2d 502, 505-06 (9th Cir.1987) (citations omitted) (emphasis in original). The fact that the Corporation’s duty to arbitrate, if it exists, is statutory in origin rather than consensual still begs the question of whether the statute applies in this instance. We believe it does. The relevant provision is 29 U.S.C. § 1401, quoted above, which requires arbitration of “[a]ny dispute between an employer” and a fund “concerning a determination made under sections 1381 through 1399.” The dispute here over withdrawal liability is such a dispute. The Corporation spent much effort arguing in the district court and here that it was not bound by a collective bargaining agreement or related agreement during the relevant time period to contribute to the Fund. But, the question of whether the Corporation is an “employer” within the meaning of 29 U.S.C. § 1401, and thus bound to arbitrate its dispute with the Fund, does not in our view turn only on whether the Corporation was obligated to contribute to the Fund under a collective bargaining or related agreement during the relevant time period. Section 1002(5) provides that an “employer” is “any person acting directly as an employer ... in relation to an employee benefit plan....” For the purposes of section 1401 we interpret the phrase “in relation to an employee benefit plan” broadly. See IUE AFL-CIO Pension Fund v. Barker &" }, { "docid": "11685331", "title": "", "text": "its negotiations with the union for a new agreement reached an impasse, at which point, under well-established labor law principles, it was free to impose its prior bargaining position. Schulze argues that impasse was reached no later than April 15, 1980, at which time Schulze implemented its own pension plan and withdrew from the IAM Plan. A. Exhaustion of Remedies The threshold issue is whether the court can and should reach the merits of Schulze’s non-constitutional claim when Schulze has not exhausted the arbitration remedy available to it under the Act. Congress provided that “[a]ny dispute between an employer and the plan sponsor ... concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration.” 29 U.S.C.A. § 1401 (a)(1). Sections 1381 through 1399 establish withdrawal liability and set forth its criteria and the methods for determining and collecting it. Schulze argues that if it had no obligation to contribute to the Plan after the effective date of the Act, then the Act’s arbitration procedures do not apply. Schulze cites one case, Speckman v. Barford, 535 F.Supp. 488 (E.D.Mo.1982), in which the court held that the defendant had ceased all covered operations prior to April 29, 1980 and, therefore, had no withdrawal liability and was not required to engage in arbitration concerning such liability, even though the plan sponsor disputed the timing of the withdrawal. Id. at 491. This court respectfully differs with the reasoning of the Speekman court. The Plan trustees have determined that Schulze withdrew from the Plan on December 12, 1980. Schulze disagrees. This is “a dispute ... concerning a determination made under sections 1381 through 1399...” 29 U.S.C. § 1401(a)(1). If a dispute between an employer and a plan sponsor were to arise over whether withdrawal occurred in December, 1980, or January, 1981, the dispute would clearly be subject to the arbitration procedures of the Act. This result should not change because the employer happens to be arguing for a date preceding the effective date of the Act. Since the dispute falls within the scope of the arbitration provisions, the" }, { "docid": "23203984", "title": "", "text": "of statutory interpretation, the district judge correctly ruled that if an employer disputes the amount of its withdrawal liability, then it must proceed to arbitration. As a general rule a party must exhaust its administrative remedies before it can invoke the jurisdiction of the courts. See Myers v. Bethlehem Steel Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). The Act requires the parties to resolve “[a]ny dispute be tween an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 1381 through 1399 [of Title 29]” by arbitration. § 1401. This private arbitration procedure — although different from government administrative proceedings — is the administrative remedy that parties are directed to use before turning to a judicial forum. Nonetheless, this and other circuits have held that the arbitration provisions of the MPPAA do not constitute a bar to federal jurisdiction. Rather, the requirement of exhaustion of administrative remedies in this context is a prudential matter within our discretion. See, e.g., T.I.M.E.-DC, Inc. v. New York State Teamsters Conference Pension & Retirement Fund, 580 F.Supp. 621, 633 (N.D.N.Y.), aff'd, 735 F.2d 60 (2d Cir.1984) (per curiam)) I.A.M. National Pension Fund Benefit Plan C v. Stockton TRI Industries, 727 F.2d 1204, 1207-10 (D.C.Cir.1984); Republic Industries v. Teamsters Joint Council No. 83 Pension Fund, 718 F.2d 628, 634 (4th Cir.1983); see also F.H. Cobb Co. v. New York State Teamsters Conference, 584 F.Supp. 1181, 1183 (N.D.N.Y.1984); Refined Sugars, Inc. v. Local 807 Labor-Management Pension Fund, 580 F.Supp. 1457, 1460-61 (S.D.N.Y. 1984); T.I.M.E.-DC, Inc. v. Trucking Employees of North Jersey Welfare Fund, 560 F.Supp. 294, 301-03 (E.D.N.Y.1983). Courts have recognized exceptions to the exhaustion doctrine in some situations when the doctrine’s policies are not implicated. These policies include the application of the administrative body’s superior expertise, promotion of judicial economy, and deference to the statutory scheme Congress created. The most common exceptions are found when the nonjudicial remedy is inadequate, statutory interpretation is required or there is a constitutional question. The Act subjects to arbitration factual issues the resolution of which is necessary" }, { "docid": "21564663", "title": "", "text": "withdrawal liability based on the Fund’s unfunded vested benefits as of June 30, 1983. The district court referred the Trustees’ suit to vacate the arbitration award to a magistrate. Reviewing the arbitrator’s decision de novo, the magistrate held that the arbitrator misinterpreted 29 U.S.C. § 1383(a)(2) (withdrawal occurs when an employer permanently ceases all covered operations), and thus vacated the award. The arbitrator read § 1383(a)(2) literally (all means all), while the magistrate, relying on a single passage of legislative history, held that all meant “virtually all.” Under the latter interpretation, the magistrate held that Allied completely withdrew from the Plan in the plan year ending June 30, 1983, as the Trustees claimed. The district court adopted the magistrate’s report and recommendation, writing separately to emphasize the court’s authority to review de novo the arbitrator’s decision. II. We confront two issues on appeal: the proper standard of review of an arbitrator’s award, and the interpretation to be given 29 U.S.C. § 1383(a)(2). A. Statutory Background ERISA subjects employers who withdraw from multiemployer pension plans to so-called withdrawal liability in an amount equal to their statutory share of the plan’s unfunded vested liabilities. 29 U.S.C. § 1381. A “complete withdrawal” occurs when an employer “(1) permanently ceases to have an obligation to contribute under the plan, or (2) permanently ceases all covered operations under the plan.” 29 U.S.C. § 1383(a). “[T]he date of a complete withdrawal is the date of the cessation of the obligation to contribute or the cessation of covered operations.” 29 U.S.C. § 1383(e). Following an employer’s withdrawal from a multiemployer pension plan, the plan sponsor is required to determine the amount of withdrawal liability owed, notify the employer of this amount, and demand payment. 29 U.S.C. §§ 1382, 1399(b)(1). The amount of an employer’s withdrawal liability is determined as of the last day of the plan year preceding the plan year in which the withdrawal occurs. 29 U.S.C. § 1391(b)(2)(A). Within 90 days after notice and demand have been made, the withdrawing employer may request that the Plan review its determination. 29 U.S.C. § 1399(b)(2)(A). The Plan" }, { "docid": "6694985", "title": "", "text": "(3d Cir.1983). We have no occasion in this case to consider ruling on the issue of the viability of a claim based on the employer’s mistake. In this case the issue is fraud. In sum, we hold that, under the federal common law of pension plans, Colteryahn, as a defrauded employer, may sue in federal court for the return of any withdrawal liability sums that were assessed as a result of a fraudulent inducement to join the Fund. Colteryahn may thus proceed with Counts 1, 3 and 4 of its complaint. IV. ARBITRABILITY OF COUNT 2 (PAYMENTS TO REDUCE THE DAIRY FUND’S LIABILITIES) Count 2 of Colteryahn’s complaint, as we understand it, seeks a determination whether certain payments made at the time of the merger should be counted as “contributions” for the purpose of apportioning the Fund’s unfunded vested liabilities among its member employers. Section 1391 requires such apportionment to assess a withdrawal liability sum. The district court held that, under 29 U.S.C. § 1401, Colteryahn must first exhaust the administrative remedy of arbitration before proceeding on this claim to district court. We agree. Section 1401(a)(1) states: “Any dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration.” 29 U.S.C. § 1401(a)(1) (emphasis added). In Republic Industries v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290 (3d Cir.1982), we explained that Congress, in enacting MPPAA, expressed a clear preference for self-regulation through arbitration, 29 U.S.C. § 1401(a)(1); ... Thus, in accordance with the exhaustion doctrine’s policy of deference to Congress, the legislature’s decision that arbitration, and not the courts, is the proper forum for the initial resolution of disputes should be respected. Id. at 294-95. Colteryahn contends, however, that this is a pure legal issue, the resolution of which requires only the interpretation of a statute, and no factual development. Moreover, Colteryahn claims that, at this early stage in the litigation, the Fund has not yet identified any disputed issues of material fact. Without such a factual dispute, Colteryahn contends, arbitration" }, { "docid": "15220908", "title": "", "text": "The first sentence of § 1401(d) provides: Payments shall be made by any employer in accordance with the determinations made under this part until the arbitrator issues a final decision with respect to the determination submitted for arbitration, with any necessary adjustments in subsequent payments for overpayments or underpayments arising out of the decision of the arbitrator with respect to the determination. . The first sentence of § 1401(b)(1) provides: If no arbitration proceeding has been initiated pursuant to subsection (a) of this section, the amounts demanded by the plan sponsor under 1399(b)(1) of this title shall be due and owing on the schedule set forth by the plan sponsor, (emphasis added) For a discussion of the contrary implications of §§ 1401(d) and 1401(b)(1), see Republic Indus, v. Teamsters Joint Council No. 83 Pension Fund, 718 F.2d 628, 641 n. 16 (4th Cir.1983). We express no view with respect to the parties’ varying interpretations of the statutory provisions concerning employer obligations either during the course of or in the absence of an arbitration proceeding. . The PBGC has taken the position that while arbitration is pending, a failure to make an installment payment for withdrawal liability does not accelerate future installment payments. See Republic Indus, v. Central Pa. Teamsters Pension Fund, 534 F.Supp. 1340, 1343 (E.D.Pa.), rev’d on other grounds, 693 F.2d 290 (3d Cir.1982). . See, e.g., Republic Indus. v. Teamsters Joint Council No. 83 Pension Fund, 718 F.2d 628, 634 (4th Cir.1983); Shelter Framing Corp. v. Pension Benefít Guar. Corp., 705 F.2d 1502, 1503, 1508 (9th Cir.1983); Republic Indus. v. Central Pa. Teamsters Pension Fund, 693 F.2d 290 (3d Cir.1982); I.A.M. Nat. Pension Fund v. Schulze Tool and Die Co., 564 F.Supp. 1285, 1289 (N.D.Cal.1983). . Arbitration under MPPAA is quite plainly to be distinguished from arbitration based upon the contractual provisions of a collective bargaining agreement. Judicial deference to the latter kind of arbitration is mandated by Congress’ preference that this contractually agreed upon vehicle for dispute resolution be the “final” method of adjustment among parties. 29 U.S.C. § 173. Therefore, agreements to arbitrate are routinely enforced," }, { "docid": "469253", "title": "", "text": "form of doing business from a partnership to a corporation, these benefit payments continued until operations ceased. We need not decide at what point an employer’s connection with a fund would be so attenuated as to support a defense that it was not an “employer” within the meaning of § 1401 and thus not obligated to submit to arbitration. Several circuit courts agree that an employer can be subject to the arbitration provisions of MPPAA, even if arguably it was not obligated to contribute to a mul-tiemployer plan during the relevant period for determining withdrawal liability. See, e.g., Allyn Transportation Co., 832 F.2d at 505-06 (dispute over whether an employer withdrew prior to the effective date of MPPAA must be arbitrated); I.A.M. National Pension Fund v. Clinton Engines Corp., 825 F.2d 415, 421-22 (D.C.Cir.1987) (same); Warner-Lambert Co. v. United Retail and Wholesale Employee’s Teamster Local No. 115 Pension Plan, 791 F.2d 283, 287-88 (3d Cir.1986) (same). Cf. Flying Tiger Line v. Teamsters Pension Trust Fund, 830 F.2d 1241, 1250-51 (3d Cir.1987). The Corporation argues that, at a minimum, it had raised various questions of statutory construction that were appropriate for the district court to consider as a matter of discretion. We agree that the arbitration provisions of MPPAA do not constitute an absolute bar to federal jurisdiction, but instead constitute an exhaustion of administrative remedies requirement. T.I.M.E-DC, 756 F.2d at 945. But while the failure to arbitrate first does not always prevent a party from seeking declaratory and/or injunctive relief against the imposition of withdrawal liability, the instances in which such relief is appropriate are likely to be rare. See Clinton Engines Corp., 825 F.2d at 417-18 (such cases are the narrow exception to the general rule of “arbitrate first”). “Congress clearly designed MPPAA so that the court will be the final forum for dispute resolution, and MPPAA’s purposes would be undermined by the expense and delay that would be involved if litigation occurred pri- or to the Act’s dispute resolution procedures.” Flying Tiger Line, 830 F.2d at 1248-49. In T.I.M.E-DC, we held that exhaustion of the arbitration remedy was" }, { "docid": "4408857", "title": "", "text": "the obligation to contribute to the plan, the fund may assess withdrawal liability and the assessment “relates back” to the date of the initial suspension. See T.I.M.E-DC, Inc. v. New York State Teamsters Conference Pension & Retirement Fund, 580 F.Supp. 621, 629 (N.D.N.Y.), aff'd, 735 F.2d 60 (2d Cir.1984); I.A.M. Nat’l Pension Fund, Benefit Plan C v. Schulze Tool and Die Co., 564 F.Supp. 1285, 1295 (N.D.Ca.1983). This section was intended to prevent the risk of withdrawal liability from influencing labor-management negotiations when the employer has no intention of withdrawing from the plan. See Schulze Tool, 564 F.Supp. at 1295. To hold an employer responsible for withdrawal liability during a protracted labor dispute may seriously impede the parties’ ability to reach a new agreement and restore pre-dispute operations. See T.I.M.E.-DC, 580 F.Supp. at 629. Moreover, given the uncertainties over the nature and extent of the employer’s statutory obligations to the fund during the period after the expiration of the CBA, this exception represents a reasonable balance between the policies under the MPPAA and the NLRA. (Arbitrator’s Opinion, p. 47). These policies, however, do not apply with equal force to the present case. Here, there was not a labor dispute nor was there a lapse in the parties’ contractual obligation to contribute to the Fund because the parties chose to enter into an Extension Agreement which continued the parties’ obligation under the expired 1983-86 CBA. Thus, this Court declines to extend the application of the “labor dispute” exception to the facts of this case. Finally, Malden argues that not to enforce its agreements with the Union would frustrate national labor policy promoting private ordering and recognizing unions as their members’ sole bargaining representatives. Malden contends that the effect of the arbitrator’s ruling is to encourage an employer, who desires withdrawal from a pension plan, to force a strike or impasse immediately upon the expiration of an existing agreement. This ruling, according to Malden, frustrates the union’s ability to negotiate in a manner designed to secure maximum advantage for its members with a minimum of industrial strife. This Court finds this argument" }, { "docid": "15220896", "title": "", "text": "defines “complete withdrawal” as occurring when an employer “permanently ceases to have an obligation to contribute under the plan,” the district court concluded that Stockton’s obligation ceased when the Company notified the Fund on April 14, 1980 of its intent to withdraw. The court concluded that since the withdrawal was effected by this notification prior to the retroactive effective date of the MPPAA, Stockton had incurred no withdrawal liability; accordingly, the court determined that the other issues raised by Stockton need not be reached. II. A. The threshold issue before us is whether the district court erred in declining to refer this dispute to arbitration, rather than reaching and deciding the central issue of statutory interpretation in this case. We conclude that, under the specific and undisputed circumstances of this case, the district court’s declination was proper. MPPAA provides that “any dispute between an employer and the plan sponsor ... concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration.” 29 U.S.C. § 1401. The Fund, which was less than eager to engage in arbitration until it ultimately met with judicial adversity, now argues that Congress’ establishment of the arbitrative scheme demonstrates that arbitration is the proper forum for initial determination of the date of Stockton’s withdrawal from the Fund. Notwithstanding the Fund’s enchantment with arbitration, we conclude for the reasons set forth below that resort to arbitration was neither a statutory prerequisite to the district court’s jurisdiction, nor in the particular circumstances of this case was arbitration a requirement mandated by jurisprudential considerations. Federal courts confronted with the issue whether arbitration is required under MPPAA have uniformly analyzed the question as an issue of exhaustion of administrative remedies, not as an issue of an absolute jurisdictional bar vel non. The courts have concluded, correctly in our view, that judicial deference to the arbitration process under MPPAA is mandated by the same policies that underlie the principle of judicial deference to administrative agencies. See, e.g., Republic Industries v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290, 294 (3d Cir.1983). First, in establishing the" }, { "docid": "13711818", "title": "", "text": "not merely the arguably purely legal one of whether Centra is an “employer” defined by the statute. The factual determinations that must be made in order to resolve this issue require that it be arbitrated. See 29 U.S.C.A. § 1401(a) (1985) (requiring arbitration of disputes over determinations under MPPAA §§ 4210 through 4219, 29 U.S.C. §§ 1381-1399). See also Flying Tiger, supra, 830 F.2d at 1250. Moreover, with increasing judicial awareness of the legitimacy and competency of arbitration as a viable forum for legal as well as factual matters, a number of courts have held that even questions of statutory interpretation, standing alone, are not exempt from arbitration under the MPPAA. As the District of Columbia Circuit has stated: Clinton Engines, supra, 825 F.2d at 417. Accord Mason & Dixon Tank Lines, supra, 852 F.2d at 164; Teamsters Pension Trust Fund v. Allyn Transportation Co., 832 F.2d 502, 504-05 (9th Cir.1987); McDonald v. Centra, supra, 118 B.R. at 921-22. Such a position accords with the view that because ERISA/MPPAA are remedial statutes, they should be liberally construed in favor of protecting the participants in employee benefits plans. ILGWU National Retirement Fund v. Levy Bros. Frocks, Inc., 846 F.2d 879, 885 (2d Cir.1988) (quoting IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118, 127 (3d Cir.1986). From the unambiguous language by which Congress established the primacy of arbitration in withdrawal liability disputes and in light of our decisions interpreting those terms, it should be beyond cavil that the existence of an issue of statutory interpretation, standing alone, does not justify bypassing arbitration. Accepting this action as a good faith threshold questioning of whether the statute applies is difficult, when Centra previously acknowledged the MPPAA’s jurisdiction by invoking arbitration. Centra’s defenses appear to be rather an attempt to “stylize [Centra’s] claim into a question of law” with the purpose of delaying if not altogether preventing further arbitration. Connors, supra, 668 F.Supp. at 7. We find that the district court properly applied the law in compelling Centra to make interim withdrawal liability payments during the pending arbitration. Therefore, the court’s" }, { "docid": "6694986", "title": "", "text": "proceeding on this claim to district court. We agree. Section 1401(a)(1) states: “Any dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration.” 29 U.S.C. § 1401(a)(1) (emphasis added). In Republic Industries v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290 (3d Cir.1982), we explained that Congress, in enacting MPPAA, expressed a clear preference for self-regulation through arbitration, 29 U.S.C. § 1401(a)(1); ... Thus, in accordance with the exhaustion doctrine’s policy of deference to Congress, the legislature’s decision that arbitration, and not the courts, is the proper forum for the initial resolution of disputes should be respected. Id. at 294-95. Colteryahn contends, however, that this is a pure legal issue, the resolution of which requires only the interpretation of a statute, and no factual development. Moreover, Colteryahn claims that, at this early stage in the litigation, the Fund has not yet identified any disputed issues of material fact. Without such a factual dispute, Colteryahn contends, arbitration is unnecessary. Colteryahn’s contentions, however, are entirely undercut by our recent decision in Flying Tiger Line v. Teamsters Pension Trust Fund, 830 F.2d 1241 (3d Cir.1987). In Flying Tiger we noted that § 1401 “does not differentiate between legal and factual questions; it simply dictates that ‘[a]ny dispute between an employer and the plan sponsor ... shall be resolved through arbitration.’ 29 U.S.C. § 1401 (1982).” 830 F.2d at 1255 (emphasis and ellipsis supplied by Flying Tiger court). We therefore held that “ ‘it should be beyond cavil that the existence of an issue of statutory interpretation, standing alone, does not justify bypassing arbitration.’ ” Id. (quoting I.A.M. Nat’l Pension Fund, Plan A, A Benefits v. Clinton Engines Corp., 825 F.2d 415, 418 (D.C.Cir.1987)); see also Teamsters Pension Trust Fund—Bd. of Trustees of W. Conference v. Allyn Transp. Co., 832 F.2d 502, 504 (9th Cir.1987) (“questions of statutory interpretation are not excepted from arbitration under MPPAA” (footnote omitted)). Thus, where the issue of statutory interpretation “involves only a MPPAA section that Congress explicitly reserved for" }, { "docid": "12635154", "title": "", "text": "29 U.S.C. § 1399(b)(2)(A). If the employer disagrees with the sponsor’s decision, it may initiate arbitration. This arbitration must be initiated within 60 days of the date the sponsor notified the employer of the decision on review or within 120 days of the date the employer requested review, whichever is earlier. 29 U.S.C. § 1401(a)(1)(A). If arbitration is not initiated within the statutory time frame, “the amounts demanded by the plan sponsor ... shall be due and owing.” 29 U.S.C. § 1401(b)(1). In June of 1983, the trustees notified Adkins & Adkins that.it owed $36,171.82 and $11,102.12 in unpaid contributions to the 1950 and 1974 Plans, respectively, and established a payment schedule. The trustees also notified Adkins & Adkins that its failure to abide by the statutory timetable for review would preclude any dispute over the amount owed. Later, in October of 1983, the trustees again demanded payment of the unpaid contributions, in addition to interest. On July 23, 1984, the trustees revised their calculation of the defendants’ liability to the 1974 Plan based on a recalculation of unfunded vested benefits. Gilleland Aff. at ¶ 9. This revision increased the defendants’ obligation to the 1974 Plan from $11,102.12 to $14,127.89. Despite notification of their obligation to pay $50,299.71 in unpaid contributions, Adkins & Adkins did not request review of this determination or seek arbitration. The requirement of arbitration broadly covers disputes involving “the establishment or amount of withdrawal liability.” Shelter Framing Corp. v. Pension Benefit Guaranty Corp, 705 F.2d 1502, 1509 (9th Cir.1983), reversed on other grounds sub nom. Pension Benefit Guaranty Corp. v. R. A. Gray & Company, — U.S.-, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). The Act delegates “factfinding functions to administrative-type bodies,” Washington Star Co. v. International Typographical Union Negotiated Pension Plan, 729 F.2d 1502, 1511 (D.C.Cir.1984), and an arbitrator’s responsibilities include the interpretation of the statutory language of the Act. Republic Industries, Inc. v. Teamsters Joint Council No. 83 of Virginia Pension Fund, 718 F.2d 628, 634 (4th Cir.1983) (meaning of “facility” under section 1397(a) is arbitrable issue), cert. denied, — U.S. -, 104 S.Ct." }, { "docid": "16676600", "title": "", "text": "Barbizon Plaza Realty Corporation, is the same employer as Park South Associates I, a partnership made up of Park South Corporation and several independent limited partners. Id. II [3] The Act provides that “[a]ny dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under,” among other provisions, the provision (29 U.S.C. § 1381 (1982)) governing employer withdrawal from such a plan, “shall be resolved through arbitration.” 29 U.S.C. § 1401(a) (1982). Despite the breadth of this language, we have recognized that not every dispute over withdrawal liability necessarily must be arbitrated. T.I.M.E-DC v. Management-Labor Welfare & Pension Funds, 756 F.2d 939 (2d Cir.1985). In the present case, both parties concluded that arbitration was not required. The district court agreed on the ground that the resolution of the dispute turned solely on a question of statutory interpretation. 671 F.Supp. at 1005 n. 8. Although neither party has appealed that ruling, we address the issue briefly, lest our decision be read as adopting the district court’s rationale on this point. In T.I.M.E-DC, we held that “the arbitration provisions of MPPAA do not constitute an absolute bar to federal jurisdiction but instead constitute an exhaustion of administrative remedies requirement.” ILG-WU Fund, 846 F.2d at 887. In the present case, we conclude that exhaustion of the arbitration remedy is not required because (1) this case presents no factual issues but only legal questions of statutory interpretation, (2) the parties agreed that arbitration was not required, (3) the suit was filed before the time for invoking arbitration had expired, and (4) judicial economy would not be served by remanding the case at this late stage for arbitration, which almost certainly would be followed by further judicial proceedings. We intimate no view on whether arbitration would be required in a case in which all of these factors were not present, or which involved some of these, and also other factors. Cf. ILGWU Fund (arbitration required). Ill MPPAA imposes withdrawal liability “[i]f an employer withdraws from a mul-tiemployer plan in a complete withdrawal....” 29 U.S.C. § 1381(a) (1982). The Act" }, { "docid": "13711819", "title": "", "text": "liberally construed in favor of protecting the participants in employee benefits plans. ILGWU National Retirement Fund v. Levy Bros. Frocks, Inc., 846 F.2d 879, 885 (2d Cir.1988) (quoting IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118, 127 (3d Cir.1986). From the unambiguous language by which Congress established the primacy of arbitration in withdrawal liability disputes and in light of our decisions interpreting those terms, it should be beyond cavil that the existence of an issue of statutory interpretation, standing alone, does not justify bypassing arbitration. Accepting this action as a good faith threshold questioning of whether the statute applies is difficult, when Centra previously acknowledged the MPPAA’s jurisdiction by invoking arbitration. Centra’s defenses appear to be rather an attempt to “stylize [Centra’s] claim into a question of law” with the purpose of delaying if not altogether preventing further arbitration. Connors, supra, 668 F.Supp. at 7. We find that the district court properly applied the law in compelling Centra to make interim withdrawal liability payments during the pending arbitration. Therefore, the court’s granting of summary judgment to the Pension Fund is AFFIRMED. . In 1980 Congress amended ERISA by means of the Multiemployer Pension Plan Amendments Act (\"MPPAA”), 29 U.S.C. §§ 1381 et seq., to protect beneficiaries of multi-employer pension plans from the effects of the withdrawal of a contributing employer. Under the MPPAA, an employer who withdraws from an ongoing mul-ti-employer pension plan becomes absolutely liable on the date of withdrawal for a proportionate share of the plan’s unfunded vested liability. A complete withdrawal occurs when an employer permanently ceases to have an obligation to contribute under the plan, or permanently ceases all covered operations under the plan. 29 U.S.C.A. § 1383(a) (1985). Partial withdrawal results when there is a 70% contribution decline, or a partial cessation of the employer’s contribution obligation. 29 U.S.C.A. § 1385(a) (1985). . 11 U.S.C. § 1129(a)(8) provides that if a class of claims or interests has not accepted the plan, the bankruptcy court shall not approve the plan unless it ascertains that the objecting class is not impaired by the" }, { "docid": "16676599", "title": "", "text": "1009. The court held, as the parties agreed, that the dispute was not required to be arbitrated. 671 F.Supp. at 1005 n. 8. See part II below. The court ruled that Park South Associates had withdrawn from the Fund when the partners sold their interests to Trump. The court agreed with the Fund that Park South Associates “permanently ceased covered operations and permanently ceased to have an obligation to contribute to the Fund following the transfer of the partnership interests.” Id. at 1006 (footnote omitted). The court stated: It would exalt form over substance, and would clearly be inconsistent with the broad remedial purposes of MPPAA, to find no change in employer status where, as here, there are no common partners between the two partnerships, where the new partners have expressly disavowed any obligations of the old partners, and, indeed, where the only thing the two partnerships have in common is the partnership name. It simply defies common sense to say that Park South Associates II, a partnership made up of Donald Trump and the Barbizon Plaza Realty Corporation, is the same employer as Park South Associates I, a partnership made up of Park South Corporation and several independent limited partners. Id. II [3] The Act provides that “[a]ny dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under,” among other provisions, the provision (29 U.S.C. § 1381 (1982)) governing employer withdrawal from such a plan, “shall be resolved through arbitration.” 29 U.S.C. § 1401(a) (1982). Despite the breadth of this language, we have recognized that not every dispute over withdrawal liability necessarily must be arbitrated. T.I.M.E-DC v. Management-Labor Welfare & Pension Funds, 756 F.2d 939 (2d Cir.1985). In the present case, both parties concluded that arbitration was not required. The district court agreed on the ground that the resolution of the dispute turned solely on a question of statutory interpretation. 671 F.Supp. at 1005 n. 8. Although neither party has appealed that ruling, we address the issue briefly, lest our decision be read as adopting the district court’s rationale on this point." }, { "docid": "12635155", "title": "", "text": "a recalculation of unfunded vested benefits. Gilleland Aff. at ¶ 9. This revision increased the defendants’ obligation to the 1974 Plan from $11,102.12 to $14,127.89. Despite notification of their obligation to pay $50,299.71 in unpaid contributions, Adkins & Adkins did not request review of this determination or seek arbitration. The requirement of arbitration broadly covers disputes involving “the establishment or amount of withdrawal liability.” Shelter Framing Corp. v. Pension Benefit Guaranty Corp, 705 F.2d 1502, 1509 (9th Cir.1983), reversed on other grounds sub nom. Pension Benefit Guaranty Corp. v. R. A. Gray & Company, — U.S.-, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). The Act delegates “factfinding functions to administrative-type bodies,” Washington Star Co. v. International Typographical Union Negotiated Pension Plan, 729 F.2d 1502, 1511 (D.C.Cir.1984), and an arbitrator’s responsibilities include the interpretation of the statutory language of the Act. Republic Industries, Inc. v. Teamsters Joint Council No. 83 of Virginia Pension Fund, 718 F.2d 628, 634 (4th Cir.1983) (meaning of “facility” under section 1397(a) is arbitrable issue), cert. denied, — U.S. -, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984). Thus, an arbitrator could have determined whether a “labor dispute” existed within the meaning of section 1398, and whether the trustees had correctly computed the amount of withdrawal liability owed. Moreover, the defendants have taken no action which would toll the statutory time frames. See Republic Industries, Inc., 718 F.2d at 644 (filing of suit challenging constitutionality of Act tolls limitations period). Under these circumstances, they have conceded the existence and amount of withdrawal liability owed to the Fund. Board of Trustees of Western Conference of Teamsters Pension Trust Fund v. J.N. Ceazan, 559 F.Supp. 1210, 1218 (N.D.Cal.1983) (citing 29 U.S.C. § 1401(b)(1); Speckmann v. Paddock Chrysler Plymouth, Inc., 565 F.Supp. 469, 473 n. 2 (E.D.Mo.1983). C. Amount of Defendants’ Withdrawal Liability While the foregoing discussion establishes that the defendants are legally liable to the Plans for withdrawal liability under ERISA, the amount owed must still be determined. Under 29 U.S.C. § 1132(g)(2), the amount of withdrawal liability equals the sum of unpaid contributions, interest on the unpaid contributions, and" }, { "docid": "3625057", "title": "", "text": "effective date and was under no obligation to initiate arbitration. Leishman also maintains that it was a joint employer with third party defendant Central Ohio Coal Company and because the coal company continued its contribution to the pension funds, there was no withdrawal to trigger liability. Central Ohio Coal Company contests the characterization of its relationship with defendant as that of joint employer and moves for dismissal of the action against it. A. Arbitration Plaintiffs’ contention that arbitration of a dispute relating to withdrawal liability is a necessary prerequisite to court review is premised upon 29 U.S.C. § 1401(a)(1), which provides that “[a]ny dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 1381 through 1399 óf this title shall be resolved through arbitration.” (Emphasis added.) It is firmly established that Congress’ unequivocal intent was that parties submit disputed matters under the MPPAA to arbitration before resorting to the courts. See I.A.M. National Pension Fund v. Clinton Engines Corp., 825 F.2d 415 (D.C.Cir.1987) and cases cited therein. This provision does not set up an absolute jurisdictional bar to the courts but instead constitutes an exhaustion of remedies requirement. I.A.M. National Pension Fund v. Stockton Tri Industries, 727 F.2d 1204, 1207 (D.C.Cir.1984). Judicial deference to the arbitration requirement under the MPPAA is motivated by the same policies that underscore the principle of judicial deference to administrative agencies: an expressed congressional preference of initial resolution of the dispute in a non-judicial forum, deference to an arbitrator’s particular skill and knowledge in certain matters, and promotion of judicial economy by virtue of the increased chance that the dispute will be resolved at the arbitration stage. 727 F.2d at 1207-08. However, “when the reasons supporting the doctrine are found inapplicable, the doctrine should not be blindly applied.” Id. at 1209. This circuit has interpreted the Stockton analysis to mandate a “narrowly cabined” set of exceptions to the general rule of arbitrate first. See Clinton Engines, 825 F.2d at 417. For example, the existence of an issue of statutory interpretation alone will not justify bypassing arbitration. Id." } ]

[ { "docid": "22635061", "title": "", "text": "terms of the settlement. See n. 2, infra. Immediately after agreeing to the settlement, Dalm filed an administrative claim for refund of the $20,262 in gift tax, interest, and penalties paid with respect to the $180,000 transfer in 1976. The claim was filed in November 1984, even though the IRC required Dalm to file any claim for a refund of the gift tax by December 1979. See § 6511(a). When the IRS failed to act upon her claim within six months, Dalm filed suit in the United States District Court for the Western District of Michigan, seeking what in her complaint she denominated a refund of “overpaid gift tax.” Her complaint alleged that the District Court had jurisdiction under 28 U. S. C. § 1346(a)(1) (1982 ed.). The Government moved to dismiss the suit for lack of jurisdiction and for summary judgment, arguing that the suit was untimely under the applicable statute of limitations. The District Court granted the Government’s motions, rejecting Dalm’s contention that her suit was timely under the doctrine of equitable recoupment as set forth in our opinion in Bull v. United States, 295 U. S. 247 (1935), a case we shall discuss. The court held that equitable recoupment did not authorize it to exercise jurisdiction over “an independent lawsuit, such as this suit, . . . maintained for a refund for a year in which the statute of limitations has expired.” App. to Pet. for Cert. 19a. On appeal, the Court of Appeals for the Sixth Circuit reversed. 867 F. 2d 305 (1989). The court found Dalm’s claim satisfied all of the requirements for equitable recoupment expressed in our cases. It rejected the District Court’s characterization of Dalm’s action as an independent lawsuit barred by the statute of limitations, reasoning that she could maintain an otherwise barred action for refund of gift tax because the Government had made a timely claim of a deficiency in her income tax based upon an inconsistent legal theory. Id., at 311-312 (citing Kolom v. United States, 791 F. 2d 762 (CA9 1986)). Because the approach taken by the Sixth and" } ]

[ { "docid": "19038020", "title": "", "text": "1135 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). Through the Tucker Act, Congress has conferred on this court “jurisdiction to render judgment upon any claim against the United States founded upon either the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). A suit seeking a refund of taxes paid is included within this grant. See Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007-08 (Ct.Cl.1967), abrogated in part on other grounds by Malone v. United States, 849 F.2d 1441, 1444-45 (Fed.Cir.1988); cf. 28 U.S.C. § 1346(a)(1) (providing that district courts shall have jurisdiction concurrent with the Court of Federal Claims to consider tax-refund suits). With limited exceptions, tax cases in this court and in district courts must be styled as claims for a refund of taxes that have been paid in full. See Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir.1993) (“Where the principle tax deficiency has not been paid in full, such tax refund claims are dismissed.”). To pursue a tax refund suit, a plaintiff must first file a tax refund claim with the IRS. I.R.C. § 7422(a). The claim filed with the IRS must “set forth in detail each ground upon which a ... refund is claimed and facts sufficient to apprise the Commissioner [of Internal Revenue] of the exact basis thereof.” Treas. Reg. § 301.6402-2(b)(1). “Courts have long interpreted [I.R.C.] § 7422(a) and Treasury Reg. § 301.6402-2(b)(1) as stating a ‘substantial variance’ rule which bars a taxpayer from presenting claims in a tax refund suit that ‘substantially varjf the legal theories and factual bases set forth in the tax refund claim presented to the IRS.” Lockheed Martin Corp. v. United States, 210 F.3d 1366, 1371 (Fed.Cir.2000) (citing Cook v. United States, 599 F.2d 400, 406 (Ct.Cl.1979)). “In short, to be addressed by a court, both the legal and factual grounds for a refund claim must first" }, { "docid": "2119044", "title": "", "text": "on which the tax was paid, whichever is later. 26 U.S.C. § 6511(a) (2000). Together, these statutes dictate that, before a plaintiff may pursue a tax refund suit, he or she must file a claim for a refund from the IRS within the window of time prescribed by § 6511(a). See Dalm, 494 U.S. at 602, 110 5. Ct. 1361 (stating that “unless a claim for refund of a tax has been filed within the time limits imposed by § 6511(a), a suit for refund, regardless of whether the tax is alleged to have been ‘erroneously,’ ‘illegally,’ or ‘wrongfully collected,’ may not be maintained in any court”); Wertz v. United States, 51 Fed.Cl. 443, 446 (2002). It is well-settled that satisfaction of that filing requirement is a jurisdictional prerequisite to suit in the Court of Federal Claims. Sun Chem. Corp. v. United States, 698 F.2d 1203, 1206 (Fed.Cir.1983) (“It is a well-established rule that a timely, sufficient claim for refund is a jurisdictional prerequisite to a refund suit.”); Stelco Holding Co. v. United States, 42 Fed.Cl. 101, 104 (1998) (“It is firmly settled that a properly filed administrative claim for refund is the indispensable prerequisite to this court’s exercise of jurisdiction over a taxpayer’s suit for refund.”). Strict compliance with § 6511(a)’s limitations period is essential because “[u]nder settled principles of sovereign immunity, the United States, as sovereign, is immune from suit, save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Stelco Holding, 42 Fed.Cl. at 104 n. 5 (quoting Dalm, 494 U.S. at 608, 110 S.Ct. 1361 (internal quotations omitted)). Here, Ms. Minehan seeks a refund of taxes paid in conjunction with her 1998 income tax return. The record shows that this return was filed on May 30, 2000, and that plaintiff paid her 1998 income taxes through withholding credits. Under IRC § 6513, taxes paid via withholding credits are deemed to have been paid “on the 15th day of the fourth month following the close of [the] taxable year" }, { "docid": "14908834", "title": "", "text": "the government correctly states, this court lacks APA jurisdiction, Martinez, 333 F.3d at 1313, and an IRS denial of an offer in compromise is not reviewable under the APA in any event, Asemani, 2004 WL 2649718, at *3. Furthermore, there is no statutory provision providing for review in this court of an IRS denial of an offer in compromise. The statutory and regulatory provisions that deal with offers in compromise provide solely for an appeal to the IRS Office of Appeals. See 26 U.S.C. § 7122(e); 26 C.F.R. § 301.7122-1(f)(5). C. The Court Lacks Jurisdiction Over the Plaintiffs’ Tax Refund Claims. This court, concurrently with federal district courts, may exercise jurisdiction over suits seeking a tax refund. 28 U.S.C. §§ 1346(a)(1) and 1491 (2000). However, certain prerequisites must be met before a taxpayer may properly invoke this court’s jurisdiction. See Wayne Raymond Barr, 1 Causes of Action 683 (2006). First, the taxpayer must fully pay the tax deficiency. See Ledford v. United States, 297 F.3d 1378 (Fed.Cir.2002) (citing Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960)) (“[Pjayment of the assessed taxes in foil is a prerequisite to bringing a refund claim.”); Shore v. United States, 9 F.3d 1524, 1527 (Fed.Cir.1993); Rocovich v. United States, 933 F.2d 991, 993-994 (Fed.Cir.1991). Second, the taxpayer must duly file a timely refund claim with the Secretary of the Treasury before filing a refund suit. See 26 U.S.C. § 7422(a). It is well-settled that satisfaction of that filing requirement is a jurisdictional prerequisite to suit in this court. See Minehan v. United States, 75 Fed.Cl. 249, 254 (2007) (citing Sun Chem. Corp. v. United States, 698 F.2d 1203, 1206 (Fed.Cir.1983)); Stelco Holding Co. v. United States, 42 Fed.Cl. 101, 104 (1998). Third, a taxpayer may not file a refund suit until either rejection of the administrative refund claim by the IRS or the expiration of the six-month period for IRS consideration of the claim, whichever occurs earlier. See 26 U.S.C. § 6532(a) (2000); Skillo v. United States, 68 Fed.Cl. 734, 741 (2005). In their response to the government’s motion" }, { "docid": "2119043", "title": "", "text": "and must be dismissed. To the extent that plaintiffs amended complaint does set forth a refund claim, the court agrees with the government. There is no question, of course, that the Court of Federal Claims may exercise jurisdiction over tax refund suits. See 28 U.S.C. §§ 1346(a)(1), 1491(a)(1) (2000). As defendant correctly points out, however, certain prerequisites must be met before a plaintiff may properly invoke this court’s jurisdiction in that area. Most importantly to this lawsuit, a tax refund suit may not be maintained by a plaintiff “unless a claim for refund of [the] tax has been filed [with the IRS] within the time limits imposed by § 6511(a)” of the Internal Revenue Code. United States v. Dalm, 494 U.S. 596, 602, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990); see 26 U.S.C. § 7422(a) (2000). Section 6511(a), in turn, requires that a tax refund request be filed within either: (1) three years from the date on which the return giving rise to the refund claim was filed; or (2) two years from the date on which the tax was paid, whichever is later. 26 U.S.C. § 6511(a) (2000). Together, these statutes dictate that, before a plaintiff may pursue a tax refund suit, he or she must file a claim for a refund from the IRS within the window of time prescribed by § 6511(a). See Dalm, 494 U.S. at 602, 110 5. Ct. 1361 (stating that “unless a claim for refund of a tax has been filed within the time limits imposed by § 6511(a), a suit for refund, regardless of whether the tax is alleged to have been ‘erroneously,’ ‘illegally,’ or ‘wrongfully collected,’ may not be maintained in any court”); Wertz v. United States, 51 Fed.Cl. 443, 446 (2002). It is well-settled that satisfaction of that filing requirement is a jurisdictional prerequisite to suit in the Court of Federal Claims. Sun Chem. Corp. v. United States, 698 F.2d 1203, 1206 (Fed.Cir.1983) (“It is a well-established rule that a timely, sufficient claim for refund is a jurisdictional prerequisite to a refund suit.”); Stelco Holding Co. v. United States, 42" }, { "docid": "20495390", "title": "", "text": "Esq., filed as counsel for Plaintiffs. On December 29, 2010, Plaintiffs filed a Motion For Extension Of Time to file the Second Amended Complaint and complete fact discovery. The court granted that motion on December 30, 2010. On January 14, 2011, a Second Amended Complaint was filed adding Mrs. Jean Gorski as a co-Plaintiff. On February 16, 2011, the Government filed an Answer to the Second Amended Complaint. On April 30, 2011, fact discovery was completed. On July 15, 2011, the Government filed a Motion For Summary Judgment (“Gov’t Mot.”) on the ground that issue preclusion bars Plaintiffs from claiming a casualty loss deduction. In the alternative, the Government argued that the demolition of the Oak-dale house was not a casualty loss within the meaning of 26 U.S.C. (“I.R.C.”) § 165(c) and, in any event, Plaintiffs were entitled only to fifty percent of any claimed casualty loss deduction. That same day the Government also filed Proposed Findings Of Uncontro-verted Facts. On December 1, 2011, Plaintiffs submitted a Response to the Government’s Motion For Summary Judgment (“PI. Resp.”) and a Response to the Government’s Proposed Findings of Uncontroverted Facts. On January 23, 2012, the Government filed a Reply (“Gov’t Reply”). III. DISCUSSION. A. Jurisdiction. The Tucker Act, in conjunction with I.R.C. § 7422(a), authorizes the United States Court of Federal Claims to adjudicate tax refund claims, if a taxpayer has paid the full assessed federal tax liability and timely filed a refund claim with the IRS stating the grounds for the claim. See 28 U.S.C. § 1491(a); I.R.C. §§ 6511(a), 7422(a); see also Chicago Milwaukee Corp. v. United States, 40 F.3d 373, 374 (Fed.Cir.1994) (“Section 7422(a) waives the United States’ sovereign immunity from [federal tax] refund suits, provided the taxpayer has previously filed a qualifying administrative refund claim.”) (internal citations omitted); Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir.1993) (holding that a tax refund claim must be dismissed if the “principal tax deficiency has not been paid in full”). If the claim is denied by the IRS and the taxpayer timely files suit, the United States Court of Federal Claims" }, { "docid": "21417110", "title": "", "text": "A. II. PROCEDURAL HISTORY. On June 9, 2014, Plaintiff filed a Complaint in the United States Court of Federal Claims, alleging that the IRS’s disallowance for the tax year ending December 2006 is erroneous and that Plaintiff is entitled to: the full amount of the disallowed research credit for the tax year ending December 2006, in the amount of $444,166; utilize the carry-over general business credit from the 2005 tax year, in the amount of $273,071; the maximum interest under the applicable tax laws; and its costs. Compl. ¶¶ 22-26. On August 8, 2014, the Government filed a Motion To Dismiss, pursuant to RCFC 12(b)(1) (“Gov’t Mot.”). On September 5, 2014, Plaintiff filed a Response (“PL Resp.”). On September 22, 2014, the Government filed a Reply (“Gov’t Reply”). III. DISCUSSION. A. Jurisdiction. Section 1346(a)(1) provides that the United States Court of Federal Claims has jurisdiction over: Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws[.] 28 U.S.C. § 1346(a)(1); see also N.Y. Life Ins. v. United States, 118 F.3d 1553, 1556 (Fed.Cir.1997) (holding that the United States Court of Federal Claims has “jurisdiction over suits seeking the return of money improperly paid to, exacted or retained by the government”). As a jurisdictional prerequisite, however, the taxpayer must first file a timely claim with the IRS. See 26 U.S.C. § 7422 ; 26 U.S.C. § 6511(a) (setting forth the statute of limitations for tax refund claims). Next, the tax due must be paid in full. See Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir. 1993) (holding that a tax refund claim must be dismissed if the “principal tax deficiency has not been paid in full”). If the IRS denies a refund claim, the taxpayer may timely file a suit in the United States Court of Federal Claims that has jurisdiction to adjudicate tax refund claims. See 26" }, { "docid": "20495391", "title": "", "text": "(“PI. Resp.”) and a Response to the Government’s Proposed Findings of Uncontroverted Facts. On January 23, 2012, the Government filed a Reply (“Gov’t Reply”). III. DISCUSSION. A. Jurisdiction. The Tucker Act, in conjunction with I.R.C. § 7422(a), authorizes the United States Court of Federal Claims to adjudicate tax refund claims, if a taxpayer has paid the full assessed federal tax liability and timely filed a refund claim with the IRS stating the grounds for the claim. See 28 U.S.C. § 1491(a); I.R.C. §§ 6511(a), 7422(a); see also Chicago Milwaukee Corp. v. United States, 40 F.3d 373, 374 (Fed.Cir.1994) (“Section 7422(a) waives the United States’ sovereign immunity from [federal tax] refund suits, provided the taxpayer has previously filed a qualifying administrative refund claim.”) (internal citations omitted); Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir.1993) (holding that a tax refund claim must be dismissed if the “principal tax deficiency has not been paid in full”). If the claim is denied by the IRS and the taxpayer timely files suit, the United States Court of Federal Claims has jurisdiction to adjudicate the tax refund claim. See I.R.C. § 6532(a); see also United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 11, 128 S.Ct. 1511, 170 L.Ed.2d 392 (2008) (“Congress has ... established a detailed refund scheme that subjects complaining taxpayers to various requirements before they can bring suit.”). Plaintiffs have paid in full the amount of taxes owed for the 2003 tax year. Gov’t PFUF, Ex. 50 at B599. The January 14, 2011 Second Amended Complaint alleges that fact and that the IRS improperly disallowed the Plaintiffs’ April 2006 Claim for Refund. Sec. Am. Compl. ¶¶ 3-4, 17-22; see also Gov’t PFUF, Ex. 52 (Oct. 31, 2007 letter from IRS disallowing Plaintiffs’ refund claim). Therefore, the court has jurisdiction to adjudicate the claims alleged therein. B. Standing. The United States Supreme Court has held that “the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d" }, { "docid": "21184154", "title": "", "text": "refund claims are dismissed.” Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir.1993). Before a tax refund claim can be considered by a court, it must first be filed with the IRS within applicable time limitations. See I.R.C. § 7422(a); see also United States v. Dalm, 494 U.S. 596, 602, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990) (claim for refund must be filed within time limits of I.R.C. § 6511(a)); Sun Chemical Corp. v. United States, 698 F.2d 1203, 1206 (Fed.Cir.1983) (“a timely, sufficient claim for refund is a jurisdictional prerequisite to a refund suit”) (emphasis added); Minehan v. United States, 75 Fed.Cl. 249, 254 (2007) (claim for refund must be filed within time limits of I.R.C. § 6511(a)). Mr. and Mrs. McGann manifestly filed a request for refund with the IRS, but the government asserts that Mr. and Mrs. McGann failed timely to file their request. See Def.’s Mot. at 12-15. The identification of the applicable time limitation for filing their refund request and the determination of when, and indeed whether, that limitation began to run govern the disposition of the government’s motion to dismiss. ANALYSIS Several statutes of limitation are candidates for application in this case. As a general matter, the possibilities are constrained and delineated by the TEFRA procedures for applying to individual partners the results of proceedings involving partnership tax returns. Under TEFRA procedures, “partnership items” are resolved at a partnership-level proceeding and, with limited exceptions, may not be contested in a refund suit. I.R.C. §§ 6221, 7422(h); see Prochorenko v. United States, 243 F.3d 1359, 1363 (Fed.Cir. 2001); Keener, 76 Fed.Cl. 455, 458-59. By contrast, nonpartnership items are resolved at the individual-partner level. See Crnkovich v. United States, 202 F.3d 1325, 1328-29 (Fed.Cir.2000). A further category of items falls between these two poles. “Affected items” are hybrids that depend upon a partnership-level determination but also have a nonpartnership aspect. See, e.g., Keener, 76 Fed.Cl. 455, 460-61 (citing Katz v. Commissioner, 335 F.3d 1121, 1124 (10th Cir.2003); GAF Corp. & Subs. v. Commissioner, 114 T.C. 519, 528, 2000 WL 863148 (2000); Arthur B. Willis, John S." }, { "docid": "21417111", "title": "", "text": "have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws[.] 28 U.S.C. § 1346(a)(1); see also N.Y. Life Ins. v. United States, 118 F.3d 1553, 1556 (Fed.Cir.1997) (holding that the United States Court of Federal Claims has “jurisdiction over suits seeking the return of money improperly paid to, exacted or retained by the government”). As a jurisdictional prerequisite, however, the taxpayer must first file a timely claim with the IRS. See 26 U.S.C. § 7422 ; 26 U.S.C. § 6511(a) (setting forth the statute of limitations for tax refund claims). Next, the tax due must be paid in full. See Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir. 1993) (holding that a tax refund claim must be dismissed if the “principal tax deficiency has not been paid in full”). If the IRS denies a refund claim, the taxpayer may timely file a suit in the United States Court of Federal Claims that has jurisdiction to adjudicate tax refund claims. See 26 U.S.C. § 6532(a) ; see also 28 U.S.C. § 1346(a)(1) (recognizing the United States Court of Federal Claims’ jurisdiction to adjudicate civil actions for taxes “erroneously or illegally assessed or collected”). B. Standard Of Review For A Motion To Dismiss Pursuant To RCFC 12(b)(1). A challenge to the United States Court of Federal Claims’ “general power to adjudicate in specific areas of substantive law ... is properly raised by a [Rule] 12(b)(1) motion.” Palmer v. United States, 168 F.3d 1310, 1313 (Fed.Cir.1999); see also RCFC 12(b)(1) (allowing a party to assert, by motion, “lack of subject-matter jurisdiction”). When considering whether to dismiss an action for lack of subject matter jurisdiction, the court is “obligated to assume all factual allegations [of the complaint] to be true and to draw all reasonable inferences in plaintiffs favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). C. The Government’s August 8, 2014 Motion To Dismiss. 1. The Government’s Argument. The Government moves to dismiss the June 9, 2014 Complaint for lack of subject matter jurisdiction, because it is" }, { "docid": "19038019", "title": "", "text": "Therefore, Dominion argues, the Mount Storm project should be subject to the de minimis rule set out in Treas. Reg. § 1.263A-ll(e)(2). Id. ¶25. Application of the de minimis rule would mean that the basis of the property associated with the Mount Storm improvements would not be treated as a “production expenditure” and would be fully deductible. The government contests Dominion’s position, arguing that the de minimis rule cannot be applied retroactively. See Def.’s Cross-Mot. for Summary Judgment and Opp’n to Pl.’s Mot. for Summary Judgment (“Def.’s Cross-Mot.”) at 42. JURISDICTION “A federal court’s jurisdiction must be established as a threshold matter before the court may reach the merits of any action.” Riser v. United States, 93 Fed.Cl. 212, 215 (2010) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). The plaintiff bears the burden of establishing that the court has subject matter jurisdiction over its claim. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). Through the Tucker Act, Congress has conferred on this court “jurisdiction to render judgment upon any claim against the United States founded upon either the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). A suit seeking a refund of taxes paid is included within this grant. See Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007-08 (Ct.Cl.1967), abrogated in part on other grounds by Malone v. United States, 849 F.2d 1441, 1444-45 (Fed.Cir.1988); cf. 28 U.S.C. § 1346(a)(1) (providing that district courts shall have jurisdiction concurrent with the Court of Federal Claims to consider tax-refund suits). With limited exceptions, tax cases in this court and in district courts must be styled as claims for a refund of taxes that have been paid in full. See Shore v." }, { "docid": "839819", "title": "", "text": "this case, arithmetically, the stated interest amount of $57,475.04 could not have been derived from the interest rate or interest period stated in the notice. Instead, the IRS appeared actually to have calculated the interest due on the underpayment by (1) starting four and one-half years prior to the stated date, i.e., on April 16,1984, not October 1, 1988, (2) ending on March 24, 2003, and (3) using the higher interest rates established by former Section 6621(e), not the standard underpayment rates established by § 6621(a)(2). McGann, 76 Fed.Cl. at 749. By April 21, 2003, Mr. and Mrs. McGann had paid the full amount of $57,475.04 sought by the IRS. Stip. ¶ 35. Slightly less than two years later, on April 15, 2005, they filed a claim for refund with the IRS, seeking $18,309.66, the difference between the interest attributable to the enhanced rate of interest under former Section 6621(c) and the standard interest rate for underpayments under I.R.C. § 6621(a)(2). Stip. ¶36. Failing to receive a response to this claim, Mr. and Mrs. McGann filed their complaint in this court on November 10, 2005. Stip. ¶ 37; Compl. ¶ 11; see I.R.C. § 6532(a)(1) (taxpayer required to wait six months before filing tax refund suit unless claim disallowed earlier); Hamzik v. United States, 64 Fed.Cl. 766, 768 (2005). PROCEDURAL HISTORY In the earlier opinion and order, the court denied the government’s motion to dismiss for lack of subject matter jurisdiction. McGann, 76 Fed.Cl. 745. The government had argued that Mr. and Mrs. McGann had filed their judicial action too late because it related to computational adjustments to individual tax returns due to partnership items, such that the six-month time limitation for seeking refunds provided in I.R.C. § 6230(c)(2)(A) applied and barred relief. Id. at 750-51. Mr. and Mrs. McGann urged the court instead to apply I.R.C. § 6511(a) which “establishes the quotidian statute of limitations for refund claims, and typically governs unless a shorter statute of limitations applies.” Id. at 751. Section 6511(a) provides that refund claims must be filed within the later of two years from the date" }, { "docid": "14908835", "title": "", "text": "80 S.Ct. 630, 4 L.Ed.2d 623 (1960)) (“[Pjayment of the assessed taxes in foil is a prerequisite to bringing a refund claim.”); Shore v. United States, 9 F.3d 1524, 1527 (Fed.Cir.1993); Rocovich v. United States, 933 F.2d 991, 993-994 (Fed.Cir.1991). Second, the taxpayer must duly file a timely refund claim with the Secretary of the Treasury before filing a refund suit. See 26 U.S.C. § 7422(a). It is well-settled that satisfaction of that filing requirement is a jurisdictional prerequisite to suit in this court. See Minehan v. United States, 75 Fed.Cl. 249, 254 (2007) (citing Sun Chem. Corp. v. United States, 698 F.2d 1203, 1206 (Fed.Cir.1983)); Stelco Holding Co. v. United States, 42 Fed.Cl. 101, 104 (1998). Third, a taxpayer may not file a refund suit until either rejection of the administrative refund claim by the IRS or the expiration of the six-month period for IRS consideration of the claim, whichever occurs earlier. See 26 U.S.C. § 6532(a) (2000); Skillo v. United States, 68 Fed.Cl. 734, 741 (2005). In their response to the government’s motion to dismiss, the plaintiffs contend that they have submitted refund requests to the IRS and that this court therefore has jurisdiction over their claims for a tax refund. The plaintiffs also appear to argue that this court has jurisdiction over a tax refund claim for the 1991 tax year because, after this case was filed, the IRS applied an overpayment by the plaintiffs for the 1988 tax year to the plaintiffs’ tax obligations for the 1991 tax year. Pis.’ Ex. 2. The government argues that this court does not have jurisdiction over the plaintiffs’ refund claims because the plaintiffs have not followed the requirements to properly invoke this court’s jurisdiction. The government argues that the plaintiffs failed to assert any refund claims in their complaint and are therefore required to file a new complaint that comports with the requirements of RCFC 9(h) and that follows the time peri od specified in 26 U.S.C. § 6532(a). The government also contends that 26 U.S.C. § 7422(a) requires that an administrative claim for refund be filed before a" }, { "docid": "21184155", "title": "", "text": "to run govern the disposition of the government’s motion to dismiss. ANALYSIS Several statutes of limitation are candidates for application in this case. As a general matter, the possibilities are constrained and delineated by the TEFRA procedures for applying to individual partners the results of proceedings involving partnership tax returns. Under TEFRA procedures, “partnership items” are resolved at a partnership-level proceeding and, with limited exceptions, may not be contested in a refund suit. I.R.C. §§ 6221, 7422(h); see Prochorenko v. United States, 243 F.3d 1359, 1363 (Fed.Cir. 2001); Keener, 76 Fed.Cl. 455, 458-59. By contrast, nonpartnership items are resolved at the individual-partner level. See Crnkovich v. United States, 202 F.3d 1325, 1328-29 (Fed.Cir.2000). A further category of items falls between these two poles. “Affected items” are hybrids that depend upon a partnership-level determination but also have a nonpartnership aspect. See, e.g., Keener, 76 Fed.Cl. 455, 460-61 (citing Katz v. Commissioner, 335 F.3d 1121, 1124 (10th Cir.2003); GAF Corp. & Subs. v. Commissioner, 114 T.C. 519, 528, 2000 WL 863148 (2000); Arthur B. Willis, John S. Pennell & Philip F. Postlewaite, Partnership Taxation 1120.02[4][c] (6th ed.1999)). The government contends that the claim filed by Mr. and Mrs. McGann relates to computational adjustments to individual tax returns due to partnership items and thus that the relatively short six-month time limitation for seeking refunds of I.R.C. § 6230(c)(2)(A) applies. Def.’s Mot. at 12. That provision is triggered by a “notice of computational adjustment” and requires a taxpayer to file his or her refund claim with the IRS “within 6 months after the day on which the Secretary mails the notice of computational adjustment to the partner.” I.R.C. § 6230(e)(2)(A). Mr. and Mrs. McGann argue that the limitation period of I.R.C. § 6230(c)(2)(A) does not apply and that the court should instead look to I.R.C. § 6511(a) for the applicable statute of limitations. Pis.’ Resp. at 31. Section 6511(a) provides that a refund claim must be filed within the later of two years from the date the liability was paid or three years from the date the return was filed. In effect, Section 6511(a)" }, { "docid": "2119042", "title": "", "text": "plaintiff] has not spelled out in his pleading____” Scogin v. United States, 33 Fed.Cl. 285, 293 (1995) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975)). III. Merits In its current motion to dismiss, the United States argues that, at bottom, plaintiffs amended complaint does no more than renew an untimely tax refund request, and thus does not properly invoke the subject matter jurisdiction of this court. The government also contends that, to the extent plaintiff seeks equitable tolling of the statute of limitations which bars her refund claim, no such tolling is permissible or appropriate. Finally, defendant claims that Ms. Minehan’s damages claim should be dismissed “[b]ecause there is no statutory waiver of sovereign immunity for claims that the IRS failed to provide certain information to taxpayers,” and so, the court lacks jurisdiction over a request for such damages. Def.’s Mot. at 7. A. Timeliness of Tax Refund Claim 1. Formal Refund Claim Defendant argues first that Ms. Minehan has reasserted an income tax refund claim which is untimely and must be dismissed. To the extent that plaintiffs amended complaint does set forth a refund claim, the court agrees with the government. There is no question, of course, that the Court of Federal Claims may exercise jurisdiction over tax refund suits. See 28 U.S.C. §§ 1346(a)(1), 1491(a)(1) (2000). As defendant correctly points out, however, certain prerequisites must be met before a plaintiff may properly invoke this court’s jurisdiction in that area. Most importantly to this lawsuit, a tax refund suit may not be maintained by a plaintiff “unless a claim for refund of [the] tax has been filed [with the IRS] within the time limits imposed by § 6511(a)” of the Internal Revenue Code. United States v. Dalm, 494 U.S. 596, 602, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990); see 26 U.S.C. § 7422(a) (2000). Section 6511(a), in turn, requires that a tax refund request be filed within either: (1) three years from the date on which the return giving rise to the refund claim was filed; or (2) two years from the date" }, { "docid": "19038021", "title": "", "text": "United States, 9 F.3d 1524, 1526 (Fed.Cir.1993) (“Where the principle tax deficiency has not been paid in full, such tax refund claims are dismissed.”). To pursue a tax refund suit, a plaintiff must first file a tax refund claim with the IRS. I.R.C. § 7422(a). The claim filed with the IRS must “set forth in detail each ground upon which a ... refund is claimed and facts sufficient to apprise the Commissioner [of Internal Revenue] of the exact basis thereof.” Treas. Reg. § 301.6402-2(b)(1). “Courts have long interpreted [I.R.C.] § 7422(a) and Treasury Reg. § 301.6402-2(b)(1) as stating a ‘substantial variance’ rule which bars a taxpayer from presenting claims in a tax refund suit that ‘substantially varjf the legal theories and factual bases set forth in the tax refund claim presented to the IRS.” Lockheed Martin Corp. v. United States, 210 F.3d 1366, 1371 (Fed.Cir.2000) (citing Cook v. United States, 599 F.2d 400, 406 (Ct.Cl.1979)). “In short, to be addressed by a court, both the legal and factual grounds for a refund claim must first have been presented by the taxpayer to the IRS.” Marandola v. United States, 76 Fed.Cl. 237, 243 (2007), appeal dismissed, 518 F.3d 913 (Fed.Cir.2008). A “legal theory not expressly or impliedly contained in the application for refund cannot be considered by a court in which a suit for refund is subsequently initiated.” Lockheed Martin, 210 F.3d at 1371 (quoting Burlington N., Inc. v. United States, 684 F.2d 866, 868 (Ct.Cl.1982)). However, as long as the “claim fairly apprises the Commissioner of the ground on which recovery is sought, then the claim is adequate for the purposes of bringing suit under section 7422(a).” Burlington N., 684 F.2d at 869. The taxpayer bears the burden of establishing that it sufficiently apprised the IRS of the same grounds and facts on which the taxpayer bases its claim before the court. See Ottawa Silica Co. v. United States, 699 F.2d 1124, 1138-39 (Fed.Cir.1983). STANDARDS FOR DECISION A. De Novo Proceeding “A tax refund suit is a de novo proceeding, in which the plaintiff bears the burden of proof, including" }, { "docid": "21184156", "title": "", "text": "Pennell & Philip F. Postlewaite, Partnership Taxation 1120.02[4][c] (6th ed.1999)). The government contends that the claim filed by Mr. and Mrs. McGann relates to computational adjustments to individual tax returns due to partnership items and thus that the relatively short six-month time limitation for seeking refunds of I.R.C. § 6230(c)(2)(A) applies. Def.’s Mot. at 12. That provision is triggered by a “notice of computational adjustment” and requires a taxpayer to file his or her refund claim with the IRS “within 6 months after the day on which the Secretary mails the notice of computational adjustment to the partner.” I.R.C. § 6230(e)(2)(A). Mr. and Mrs. McGann argue that the limitation period of I.R.C. § 6230(c)(2)(A) does not apply and that the court should instead look to I.R.C. § 6511(a) for the applicable statute of limitations. Pis.’ Resp. at 31. Section 6511(a) provides that a refund claim must be filed within the later of two years from the date the liability was paid or three years from the date the return was filed. In effect, Section 6511(a) establishes the quotidian statute of limitations for refund claims, and typically governs unless a shorter statute of limitations applies. See Computervision Corp. v. United States, 445 F.3d 1355, 1373 (Fed.Cir.2006). The government’s argument that the six-month statute of limitations set out in I.R.C. § 6230(c)(2)(A) operates as a bar to the claim put forward by Mr. and Mrs. McGann has three major predicates: that (1) the assessment of the enhanced interest at issue is within the scope of a “change in ... tax liability,” I.R.C. § 6231(a)(6), (2) the assessment of the enhanced interest in this instance reflects a partnership item that was addressed conclusively in a partnership-level determination of the Tax Court, and (3) the computational adjustment respecting that partnership item was made subsequently by the IRS and appropriate notice of that computational adjustment was mailed to Mr. and Mrs. McGann more than six months prior to them submission of a refund claim. Each of these premises will be addressed in turn. A. Interest as “Tax” Mr. and Mrs. McGann contend that a computational" }, { "docid": "21184153", "title": "", "text": "780, 80 L.Ed. 1135 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). Through the Tucker Act, Congress has conferred on this court “jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). This grant includes a suit seeking a refund of taxes. See Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002, 1007 (1967), abrogated in part on other grounds by Malone v. United States, 849 F.2d 1441, 1444-45 (Fed.Cir.1988). With very limited exceptions, tax cases in this court and district courts are purely refund suits. Cf. 28 U.S.C. § 1346(a)(1) (providing that district courts shall have jurisdiction concurrent with that of this court to consider tax-refund suits). “Where the principal tax deficiency has not been paid in full, such tax refund claims are dismissed.” Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir.1993). Before a tax refund claim can be considered by a court, it must first be filed with the IRS within applicable time limitations. See I.R.C. § 7422(a); see also United States v. Dalm, 494 U.S. 596, 602, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990) (claim for refund must be filed within time limits of I.R.C. § 6511(a)); Sun Chemical Corp. v. United States, 698 F.2d 1203, 1206 (Fed.Cir.1983) (“a timely, sufficient claim for refund is a jurisdictional prerequisite to a refund suit”) (emphasis added); Minehan v. United States, 75 Fed.Cl. 249, 254 (2007) (claim for refund must be filed within time limits of I.R.C. § 6511(a)). Mr. and Mrs. McGann manifestly filed a request for refund with the IRS, but the government asserts that Mr. and Mrs. McGann failed timely to file their request. See Def.’s Mot. at 12-15. The identification of the applicable time limitation for filing their refund request and the determination of when, and indeed whether, that limitation began" }, { "docid": "21184152", "title": "", "text": "the full amount sought by the IRS. See Def.’s Mot., App. B, Ex. 3 at B-9; Pis.’ Supp., Ex. A at A-9. Two years later, on April 15, 2005, Mr. and Mrs. McGann filed a refund claim with the IRS, seeking a refund of $18,309.66, the difference between the interest attributable to the enhanced rate of interest under former § 6621(c) and the standard interest rate for underpayments under I.R.C. § 6621(a)(2). Pis.’ Supp., Ex. A at A-l (Form 843), A-97 (Certified Mail Receipt (Apr. 15, 2005)). Failing to receive a response to this claim, Mr. and Mrs. McGann filed their complaint in this court on November 10, 2005. Compl. H11; see I.R.C. § 6532(a)(1) (taxpayer required to wait six months before filing tax refund suit unless claim disallowed earlier); Hamzik v. United States, 64 Fed.Cl. 766, 768 (2005). JURISDICTION As plaintiffs, Mr. and Mrs. McGann bear the burden of establishing that the court has subject matter jurisdiction over their claim. McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). Through the Tucker Act, Congress has conferred on this court “jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). This grant includes a suit seeking a refund of taxes. See Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002, 1007 (1967), abrogated in part on other grounds by Malone v. United States, 849 F.2d 1441, 1444-45 (Fed.Cir.1988). With very limited exceptions, tax cases in this court and district courts are purely refund suits. Cf. 28 U.S.C. § 1346(a)(1) (providing that district courts shall have jurisdiction concurrent with that of this court to consider tax-refund suits). “Where the principal tax deficiency has not been paid in full, such tax" }, { "docid": "5489250", "title": "", "text": "Also, the court has concurrent jurisdiction over tax refund suits with federal district courts. 28 U.S.C. § 1346(a)(1); Shore v. United States, 9 F.3d 1524, 1525 (Fed.Cir.1993). Nonetheless, in accordance with the “fall payment” rule set forth in Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), adhered to, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623, reh’g denied, 362 U.S. 972, 80 S.Ct. 953, 4 L.Ed.2d 902 (1960), a plaintiff must satisfy the jurisdictional prerequisite of full payment of the tax liability, penalties, and interest in order to maintain a tax refund action in either this court or the district court. See also Rocovich v. United States, 933 F.2d 991, 993-94 (Fed.Cir.1991) (stating that the Claims Court and the Court of Claims have long applied the Flora rule “to dismiss tax refund suits against the United States when the assessment has not been paid in full prior to commencement of the action”); Wright v. United States, 42 Fed.Cl. 745, 746 (1999) (noting that a plaintiff can only obtain jurisdiction under section 1346(a)(1) if it is demonstrated that “the tax assessed was paid in full at the time the claim was filed”); Shore, 9 F.3d at 1526-27 (noting that this court has consistently applied the full payment rule with regard to principal tax deficiency, dismissing tax refund claims where the principal tax deficiency was not paid, regardless of interest or penalty payments) (citing Magee v. United States, 24 Cl.Ct. 511, 512 (1991); Cohen v. United States, 23 Cl.Ct. 717, 719 n. 3 (1991); DiNatale v. United States, 12 Cl.Ct. 72, 72-74 (1987); cf. Lambropoulos, 18 Cl.Ct. at 237). The statutory framework a party must satisfy in order to establish jurisdiction includes 26 U.S.C. §§ 6511 and 7422. Pursuant to section 7422(a): No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected ... until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and" }, { "docid": "17727814", "title": "", "text": "Clintwood Elkhorn, 553 U.S. at 4, 128 S.Ct. 1511. Before filing a refund suit in this court, however, a taxpayer must satisfy certain jurisdictional prerequisites. See Waltner v. United States, 679 F.3d 1329, 1332 (Fed.Cir.2012) (stating that the United States’ sovereign immunity is “construed narrowly” in the eon- text of tax refund suits and “is limited by the Internal Revenue Code, including [IRC] § 7422” (citing Clintwood Elkhorn, 553 U.S. at 8-9, 128 S.Ct. 1511)); Roberts, 242 F.3d at 1067. First, a plaintiff must pay his tax liability in full. Shore v. United States, 9 F.3d 1524, 1526 (Fed.Cir.1993) (citing Flora, 362 U.S. at 150, 80 S.Ct. 630, Tonasket v. United States, 218 Ct.Cl. 709, 711-712, 590 F.2d 343 (1978), and Katz v. United States, 22 Cl.Ct. 714, 714-15 (1991)); accord Ledford v. United States, 297 F.3d 1378, 1382 (Fed.Cir.2002) (citations omitted). This “full payment rule” was first announced by the Supreme Court in Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), and has been consistently applied by the United States Court of Appeals for the Federal Circuit, as well as this court, to dismiss refund suits for lack of subject matter jurisdiction where the taxpayer failed to pay the full amount of taxes assessed for the taxable year at issue. See, e.g., Ledford, 297 F.3d at 1382; Rocovich, 933 F.2d at 994-95; Ibrahim v. United States, 112 Fed.Cl. 333, 336 (2013); Smith v. United States, 101 Fed.Cl. 474, 480-81 (2011), aff'd, 495 Fed.Appx. 44 (Fed.Cir.2012). Second, a plaintiff must file a timely administrative refund claim with the IRS. See IRC §§ 6511(a), 7422(a). IRC § 7422(a) provides that a taxpayer must have “duly filed” an administrative claim for refund with the IRS before maintaining a suit for refund: No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until" } ]

[ { "docid": "8020017", "title": "", "text": "of guilt, contingent on her payment of $27,963 in restitution over six years. In December 2003, de Vega traveled to the Dominican Republic to visit her family. Upon her return to Boston on January 3, 2004, the Department of Homeland Security determined that she was an “arriving alien,” and that she was inadmissible under 8 U.S.C. § 1101(a)(13)(C) because of her criminal conviction. De Vega appeared before an IJ, where she admitted that she was a citizen of the Dominican Republic, that she had committed a crime involving moral turpitude, and that she was thereby removable. She nonetheless moved to terminate the proceedings, claiming that she could not be classified as seeking “admission” to the United States because she was an LPR and had left the country only for an “innocent, casual, and brief’ trip, Fleuti, 374 U.S. at 460-61, 83 S.Ct, 1804. She also filed a petition for cancellation of removal, arguing that the larceny and fraud charges had not resulted in a “conviction” for an aggravated felony, thereby rendering her eligible for that form of relief. The IJ denied de Vega’s motion to terminate, finding that the Fleuti doctrine had been superseded by Congress’s 1996 amendments to the INA. Therefore, the nature and duration of de Vega’s visit to the Dominican Republic were irrelevant, and her prior conviction required that she satisfy the conditions for admission. The IJ also denied her request for cancellation of removal because de Vega’s 1998 continuation without a finding of guilt for false representations amounted to an aggravated felony conviction, as defined by 8 U.S.C. § 1101 (a)(43)(M), resulting in ineligibility for cancellation, id. § 1229b(a). Based on these findings, the IJ ordered de Vega removed to the Dominican Republic. De Vega appealed to the BIA, which affirmed the IJ’s decision without further opinion. . She then appealed to this court. Because the BIA affirmed without writing its own opinion, we review the IJ’s decision. See Simo v. Gonzales, 445 F.3d 7, 11 (1st Cir.2006); Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir.2005). Our review of the agency’s statutory interpretations is de" } ]

[ { "docid": "12027904", "title": "", "text": "there is no justification for distinguishing between him and a lawful permanent resident who had not left as he did. But § 1182(a)(2)(A)(i)(I) is not relevant to this distinction. What is relevant is 8 U.S.C. § 1101(a)(13)(C)(v), which is the provision that renders him an “arriving alien” and so subject to charges of inadmissibility. Mejia-Rodriguez’s argument is also based on a factual mistake. He would have been subject to removal even if he had remained in the United States, given that he had been convicted of a crime involving moral turpitude within five years of his admission. See 8 U.S.C. § 1227(a)(2)(A)®. In any event, these congressionally determined categories are subject at most to rational basis review. See Almon v. Reno, 192 F.3d 28, 31 (1st Cir.1999); see also Malagon de Fuentes v. Gonzales, 462 F.3d 498, 503-04 (5th Cir.2006). A lawful permanent resident who departs the country and attempts to return is not similarly situated to a lawful permanent resident who never left. See Landon v. Plasencia, 459 U.S. 21, 31, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982); United States ex rel Volpe v. Smith, 289 U.S. 422, 425-26, 53 S.Ct. 665, 77 L.Ed. 1298 (1933); Malagon de Fuentes, 462 F.3d at 503-04. His second argument concerning interpretation of the petty offense exception involves a pure issue of law and is reviewed de novo. See Elien v. Ashcroft, 364 F.3d 392, 396 (1st Cir.2004); see also Mendez-Mendez, 525 F.3d at 832. We will put aside the fact that the petty offense exception only applies to aliens who have committed only one crime, see 8 U.S.C. § 1182(a)(2)(A)(ii), (a)(2)(B), and Mejia-Rodriguez has committed two, to reach the merits of his argument. We will also set aside the fact that he conceded removability before the IJ and that binds him on the merits. See Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir.2006); Selimi v. INS, 312 F.3d 854, 860 (7th Cir.2002). The relevant portion of the petty offense exception provides that the inadmissibility rule for an alien who committed a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I), shall not" }, { "docid": "4836118", "title": "", "text": "a legal permanent resident. The Department of Homeland Security (“DHS”) initiated removal proceedings against him by filing a Notice to Appear (“NTA”) in immigration court. The NTA charged him under § 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien ineligible for admission into the United States on account of his prior misdemeanor conviction for a CIMT. On August 13, 2010, Rodriguez appeared before an Immigration Judge (“IJ”), admitted to the seven factual allegations listed in the NTA, and denied the charge against him. Rodriguez later submitted an application for cancellation of removal under § 240A(a). of the INA, 8 U.S.C. § 1229b(a), and moved to terminate his removal proceedings, arguing that his assault conviction was not a CIMT and his burglary of a vehicle conviction fell within the petty offense exception under § 212(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) - After a hearing on February 16, 2011, the IJ determined that Rodriguez’s assault conviction was for a CIMT, denied his application for cancellation of removal, and ordered him removed from the United States to Mexico. Rodriguez appealed the ruling to the BIA, which denied his request for oral argument and dismissed his appeal. Rodriguez timely appealed the BIA’s decision to this court. DISCUSSION Section 212(a)(2)(A)© of the INA provides, in pertinent part, that an alien “convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a crime involving moral turpitude ... is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)©®. Aliens deemed inadmissible under the INA are “ineligible to be admitted to the United States” under § 212(a) of the INA, 8 U.S.C. § 1182(a), and, if already present, are “deportable” under § 237(a)(1)(A) of the INA, 8 U.S.CA. § 1227(a)(1)(A). Because the INA does not define the term “moral turpitude” and legislative history does not clarify which crimes Congress intended to characterize as turpitudinous, we have concluded that “the interpretation of this provision [was left] to the BIA and interpretation of its application to state and federal laws [was left] to the federal courts.” Rodriguez-Castro v. Gonzales, 427" }, { "docid": "22920595", "title": "", "text": "had been admitted, he had overstayed the temporary visa he received on December 14, 1986. On October 15, 2003, he pleaded guilty to violating 18 U.S.C. § 1542. Rodriguez contested his deportation, arguing that he was eligible for cancellation of removal or adjustment of status. The IJ rejected these claims and found that the conviction under section 1542 rendered him statutorily ineligible for both types of relief. The IJ held that Rodriguez was ineligible for adjustment of status because he could not establish admissibility as required by 8 U.S.C. § 1255(a) because he had falsely represented himself to be a citizen. See 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The IJ also held that Rodriguez’s conviction under section 1542 was a crime involving moral turpitude (“CIMT”) and that, therefore, he was statutorily precluded from establishing eligibility for cancellation of removal. See 8 U.S.C § 1229b(b)(l)(C) (excluding from eligibility for cancellation of removal aliens convicted of a crime under 8 U.S.C. § 1182(a)(2), which includes CIMTs). Rodriguez appealed to the BIA, which summarily affirmed the IJ’s decision in a one-paragraph opinion. He filed a timely petition for review of the BIA’s decision. DISCUSSION The main issue on appeal is whether section 1542 is a CIMT under section 1182(a)(2)(A)(i)(I). We hold that it is, and that, therefore, the IJ correctly denied Rodriguez’s application for cancellation of removal under section 1229b(b). We further hold that the IJ properly held that Rodriguez was inadmissible under section 1182(a) because he had “falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter ... or any other Federal or State law.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). As a result, Rodriguez is statutorily ineligible for adjustment of status. See 8 U.S.C. § 1255(a) (requiring admissibility as a perquisite for adjustment of status). I. Jurisdiction Where, as here, the BIA adopts the IJ’s findings and reasoning, we review the decision of the IJ as if it were that of the BIA. Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)," }, { "docid": "22880636", "title": "", "text": "it charged removability under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The two predicate convictions were either of the two attempted aggravated assault convictions in 1993, plus the “child abuse” conviction in 1997. Second, it charged removability under INA § 237(a)(2)(E)®, 8 U.S.C. § 1227(a)(2)(E)®, for having been convicted of the crime of child abuse in 1997. On February 13, 2001, the INS added a third charge of removability under INA § 237(a)(2)(A)®, 8 U.S.C. § 1227(a) (2)(A)(i), for having been convicted of a crime involving moral turpitude, which was committed within five years of admission, and for which a sentence of one year or longer could have been imposed. The predicate conviction for this charge was either of the two attempted aggravated assault convictions in 1993. Sinotes-Cruz was admitted in May 1988, when he was granted temporary resident status. The date of the crimes underlying the two convictions was March 1993, just short of five years after Sinotes-Cruz’s admission. Although he had brief-writing and other assistance from a law school immigration clinic, Sinotes-Cruz appeared pro se during the proceedings in the Immigration Court. Sinotes-Cruz did not contest his removability in those proceedings. Instead, he filled out Form EOIR-42A, requesting cancellation of removal under § 1229b(a). He later asked, in the alternative, for simultaneous waiver of deportation under § 212(c) and cancellation of removal under § 1229b(a). In a written decision, the Immigration Judge (“IJ”) stated that Sinotes-Cruz “admitted the allegations and conceded re-movability under the charges.” Based on Sinotes-Cruz’s “admissions and concessions,” the IJ held that he was removable under the two initial charges of removability. The IJ did not directly address the third charge. The IJ further held that Sinotes-Cruz was ineligible for cancellation of removal because under the stop-time rule of § 1229b(d)(l) either of his 1993 convictions stopped the accrual of the seven years of continuous residence required for cancellation of removal. See 8 U.S.C. § 1229b(d)(l). Because neither of the first two charges of removability" }, { "docid": "23395391", "title": "", "text": "HANSEN, Circuit Judge. Jorge Pinos-Gonzalez (“Pinos”) petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal from the decision of an Immigration Judge (IJ) finding him ineligible for cancellation of removal. The BIA concluded that Pinos was attempting to appeal an issue that he had conceded with an argument he had not raised before the IJ. Pinos asserts that the BIA erred by not considering his legal argument regarding his eligibility for cancellation of removal, and the Attorney General responds that this court should give effect to the BIA’s waiver rule. We deny the petition for review. Pinos admitted the allegations of an amended Notice to Appear in removal proceedings and conceded the charge of removability. He subsequently applied for cancellation of removal. See 8 U.S.C. § 1229b(b). At a preliminary hearing on June 9, 2005, the IJ noted that his criminal record included a 2004 Minnesota conviction of domestic assault in the fifth degree in violation of Minn.Stat. § 609.224, and a 2002 Minnesota conviction for providing false information to a police officer in violation of Minn.Stat. § 609.506. The IJ noted that she considered these to be crimes involving moral turpitude and continued the hearing to provide an opportunity for the parties to address the issue of whether these convictions rendered Pinos ineligible for cancellation of removal. See § 1229b(b)(l)(C) (providing that cancellation of removal is available to an otherwise inadmissible alien if, among other things, the alien has not been convicted of an offense under § 1182(a)(2)); id. § 1182(a)(2)(A)® (stating an alien who has “committed, or who admits committing acts which constitute the essential elements of — (I) a crime involving moral turpitude ... is inadmissible”). At the continued hearing on September 22, 2005, the IJ concluded that Pinos was ineligible for cancellation of removal because he had been convicted of two crimes involving moral turpitude, referencing the domestic assault conviction and the conviction for providing false information to an officer. Pinos asserted that his domestic assault conviction might be vacated in his postconviction proceeding that was then pending" }, { "docid": "23686834", "title": "", "text": "inspection or parole. On September 9,1999, she was indicted in Texas state court for child abandonment with intent to return in violation of Texas Penal Code section 22.041, subsections (b) and (c). She ultimately pleaded guilty to the lesser included charge of attempted misdemeanor child abandonment with intent to return, in violation of Texas Penal Code section 22.041(b). On July 25, 2001, the state court accepted her guilty plea. Ms. Rodriguez-Castro was sentenced to pay a fíne and serve 364 days in jail, with imprisonment suspended subject to probation and community service. On September 24, 1999, the INS charged Ms. Rodriguez-Castro under 8 U.S.C. § 1182(a)(6)(A)(1), i.e., as an inadmissible alien ineligible for admission because she was present in the U.S. “without being properly admitted or paroled” or because she arrived in the United States at “[a] time or place other than as designated by the Attorney General as admissible.” Under 8 U.S.C. § 1227(a)(1)(A), such inadmissible aliens are deportable. Ms. Rodriguez-Castro conceded her re-movability and sought relief by filing an application for cancellation of removal. Under 8 U.S.C. § 1229b(b)(1), a nonper-manent alien may be granted cancellation by the Attorney General if: 1) she has been present continuously in the U.S. for at least 10 years; 2) she has been “a person of good moral character during [that] period[,]” 8 U.S.C. § 1229b(b)(1)(B); 3) she has not been convicted of certain categories of crimes—including crimes meeting the requirements of 8 U.S.C. § 1227(a)(2), crimes of moral turpitude; and 4) removal “would result in exceptional and extremely unusual hardship to the alien’s ... child, who is a citizen of the U.S.” 8 U.S.C. § 1229b(b)(1)(D). The immigration judge found Ms. Rodriguez-Castro’s conviction for attempted misdemeanor child abandonment qualified as a CIMT. Thus, Ms. Rodriguez-Castro was not eligible for cancellation of removal: “[r]espondant is barred as an alien convicted of an offense under 8 U.S.C. § 1227(a)(2) [CIMTs] and is unable [because of that conviction] to show good moral character.” Immigration Judge’s Opinion at 6. As a result, a final order was entered, sustaining the charge under 8 U.S.C. § 1182," }, { "docid": "12027903", "title": "", "text": "exception must be read in light of the Guidelines and not the statutory máximums. Third, he alleges that he was eligible for a waiver under 8 U.S.C. § 1182(h) because he has “at least one U.S. citizen child.” We have jurisdiction to review the first two claims but not the third. Our review in this case, under the REAL ID Act, is restricted to constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(C), (a)(2)(D); De Araujo v. Gonzales, 457 F.3d 146, 153 (1st Cir.2006); see also Conteh v. Gonzales, 461 F.3d 45, 63-64 (1st Cir.2006)(discussing restrictions on judicial review in cases involving waiver of inadmissibility under § 1182(h)). The equal protection argument, cursorily made, is without merit, and is based on mistakes of both law and fact. To start, Mejia-Rodriguez’s argument is based entirely on the wrong section of the immigration statute. Mejia-Rodriguez asserts that the application of 8 U.S.C. § 1182(a)(2)(A)(i)(I) violated his constitutional rights because, if he had remained in the country, he would not have been subject to removal, and there is no justification for distinguishing between him and a lawful permanent resident who had not left as he did. But § 1182(a)(2)(A)(i)(I) is not relevant to this distinction. What is relevant is 8 U.S.C. § 1101(a)(13)(C)(v), which is the provision that renders him an “arriving alien” and so subject to charges of inadmissibility. Mejia-Rodriguez’s argument is also based on a factual mistake. He would have been subject to removal even if he had remained in the United States, given that he had been convicted of a crime involving moral turpitude within five years of his admission. See 8 U.S.C. § 1227(a)(2)(A)®. In any event, these congressionally determined categories are subject at most to rational basis review. See Almon v. Reno, 192 F.3d 28, 31 (1st Cir.1999); see also Malagon de Fuentes v. Gonzales, 462 F.3d 498, 503-04 (5th Cir.2006). A lawful permanent resident who departs the country and attempts to return is not similarly situated to a lawful permanent resident who never left. See Landon v. Plasencia, 459 U.S. 21, 31, 103 S.Ct. 321," }, { "docid": "23122776", "title": "", "text": "has not raised a colorable legal or constitutional claim, we lack jurisdiction over, and therefore dismiss, the petition for review. 8 U.S.C. § 1252(a)(2)(B)(I), (C). I Planes is a native and citizen of the Philippines and a lawful permanent resident of the United States. After entering the United States in July 1981, he sustained two relevant criminal convictions. In 1998, he pleaded guilty and was convicted of delivering or making a check with insufficient funds with intent to defraud, in violation of California Penal Code § 476a(a). In 2004, he pleaded guilty to and was convicted of possessing 15 or more “access devices,” in violation of 18 U.S.C. § 1029(a)(3). Planes subsequently appealed the sentence imposed for the § 1029(a)(3) offense, but did not appeal the conviction itself. We remanded Planes’s challenge to the sentence to the district court “for further proceedings consistent with United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir.2005).” On remand, the district court has not yet issued any decision regarding Planes’s sentence. On September 20, 2005, the former Immigration and Naturalization Service issued Planes a notice to appear, alleging that Planes was removable due to his convictions for two or more crimes involving moral turpitude (namely, the two offenses described above) not arising out of the same criminal scheme, pursuant to Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(ii). At the hearing, the IJ held that Planes was removable on that ground, and also denied Planes’s request for cancellation of removal in an exercise of discretion. Planes appealed to the BIA. He argued that the IJ had erred in considering his conviction for the § 1029(a)(3) offense because he had not yet been resentenced, and “thus it is not a final conviction that the IJ or BIA can review.” Further, he argued that neither of his convictions constituted a crime involving moral turpitude. The BIA affirmed the IJ, holding that the two prior offenses under California Penal Code § 476a(a) and 18 U.S.C. § 1029(a)(3) were both categorically crimes involving moral turpitude, because “they are defined by reference to" }, { "docid": "7332013", "title": "", "text": "date. On May 6, 2009, he pleaded guilty to one count of identity fraud in violation of Utah Code Annotated § 76-6-1102 for using another person’s social security number to obtain employment. He was issued a notice to appear, which charged him with removability under 8 U.S.C. § 1182(a)(6)(A)® as “[a]n alien present in the United States without having been admitted or paroled.” At hearings before an IJ, he conceded removability but requested cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(l). He also requested a change in custody status, namely, release from detention. The IJ denied his change of custody request, and the BIA later dismissed his appeal of that decision. In a separate decision, the IJ determined that Mr. Rodriguez was not eligible for cancellation of removal because his fraud conviction constituted a crime involving moral turpitude and precluded him from establishing good moral character. See 8 U.S.C. § 1229b(b)(l) (requiring, among other things, that to be eligible for cancellation of removal, an alien must have been “of good moral character” in the ten years immediately preceding his application and must not have been convicted of a crime under 8 U.S.C. § 1182(a)(2), which includes a crime involving moral turpitude). The BIA dismissed an appeal of that decision, concluding that, under the categorical approach, the conviction under the state statute required a specific intent to defraud, an element, it said, that has always been found to involve moral turpitude. The BIA further concluded that, even under the modified categorical approach, the specific facts of Mr. Rodriguez’s offense constituted a crime involving moral turpitude — he “signed an Employment Eligibility Verification (Form 1-9) and affirmed that the social security number on the form was his,” and he “listed a resident alien number on the form that was not his and indicated that he was a lawful permanent resident.” No. 10-9540, Admin. R. at 5. Accordingly, the BIA concluded that Mr. Rodriguez had not established his eligibility for cancellation of removal. II. Discussion A. No. 10-9531 We first address the petition for review in No. 10-9531. Mr. Rodriguez seeks review" }, { "docid": "12027906", "title": "", "text": "apply if: The maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months.... 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The statute itself makes no reference to the Sentencing Guidelines. The language of the statute plainly refers to the “maximum penalty possible” and that maximum is set by statute. That maximum possible punishment is for “the crime of which the alien was convicted,” a reference again to the statute of conviction. See Mendez-Mendez, 525 F.3d at 832-35. The fact that Mejia-Rodriguez was not actually sentenced to confinement of less than a year is irrelevant. The statutory language is plain and requires rejection of his argument. See Aquino-Encarnacion v. INS, 296 F.3d 56, 57 (1st Cir.2002) (per curiam). Mejia-Rodriguez’s third argument is that he was eligible for a waiver under 8 U.S.C. § 1182(h) because he has a child who is a U.S. citizen. This newfound claim is based on a factual assertion that was not presented to the agency. Mejia-Rodriguez has thus failed to exhaust his administrative remedies. See Silva v. Gonzales, 455 F.3d 26, 28-29 (1st Cir.2006). And had any discretionary decision been made on the facts of his case, this would not be subject to judicial review, given the restraints of 8 U.S.C. § 1252(a)(2). See Conteh, 461 F.3d at 63-64. The petition for review is denied. . Mejia-Rodriguez later revealed that he and his wife were divorced. . Mejia-Rodriguez does not challenge the denial of cancellation of removal under § 1229b(a). .Mejia-Rodriguez describes his claim in terms of due process, but it is more fairly characterized as an equal protection claim. See Malagon de Fuentes v. Gonzales, 462 F.3d 498, 503 (5th Cir.2006)." }, { "docid": "7332012", "title": "", "text": "PETITIONS FOR REVIEW OF DECISIONS OF THE BOARD OF IMMIGRATION APPEALS PORFILIO, Senior Circuit Judge. In these consolidated matters, petitioner Felix Sanchez Rodriguez-Heredia, a native and citizen of Mexico, petitions for review of two decisions of the Board of Immigration Appeals (BIA). In No. 10-9531, he seeks review of the BIA’s dismissal of an appeal from a decision by an immigration judge (IJ) denying his request for a change in custody status. We dismiss this petition as moot because Mr. Rodriguez was released from detention and removed from the United States on July 30, 2010. In No. 10-9540, he seeks review of a final order of removal issued by the BIA dismissing an appeal from an IJ’s determination that he was not eligible for cancella tion of removal due to his conviction of a crime involving moral turpitude. We deny this petition because Mr. Rodriguez’s conviction of identity fraud under Utah law is a crime involving moral turpitude. I. Background Mr. Rodriguez entered the United States without inspection at an unknown place on an unknown date. On May 6, 2009, he pleaded guilty to one count of identity fraud in violation of Utah Code Annotated § 76-6-1102 for using another person’s social security number to obtain employment. He was issued a notice to appear, which charged him with removability under 8 U.S.C. § 1182(a)(6)(A)® as “[a]n alien present in the United States without having been admitted or paroled.” At hearings before an IJ, he conceded removability but requested cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(l). He also requested a change in custody status, namely, release from detention. The IJ denied his change of custody request, and the BIA later dismissed his appeal of that decision. In a separate decision, the IJ determined that Mr. Rodriguez was not eligible for cancellation of removal because his fraud conviction constituted a crime involving moral turpitude and precluded him from establishing good moral character. See 8 U.S.C. § 1229b(b)(l) (requiring, among other things, that to be eligible for cancellation of removal, an alien must have been “of good moral character” in the" }, { "docid": "12027901", "title": "", "text": "was served with a Notice to Appear, alleging that he was inadmissible and removable from the United States as an alien who has been convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)®©. There is no dispute that he had been convicted of crimes involving moral turpitude. The removal hearings before an Immigration Judge (“U”) were held on November 23, 2005, and over six months later, on June 15, 2006. Mejia-Rodriguez admitted the factual allegations and conceded re-movability. Not surprisingly, the IJ’s June 15, 2006 decision found that Mejia-Rodriguez was removable. The decision also held that Mejia-Rodriguez was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) because his time period of physical presence and residence in the United States stopped as a matter of law in 1997 when he committed his criminal offenses, and those offenses were less than five years from the date of Mejia-Rodriguez’s admission into the United States as a lawful permanent resident. Furthermore, the IJ found that Mejia-Rodriguez was ineligible for the discretionary relief of waiver of inadmissibility under 8 U.S.C. § 1182(h) because no visa petition had been filed on his behalf and because he could not meet the family hardship requirement because he was estranged from his wife. Mejia-Rodriguez appealed to the BIA on July 13, 2006, arguing he was not removable because he fit within the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II). He argued that the BIA must measure the “maximum penalty possible” under the exception by reference only to the Sentencing Guidelines, which suggested a sentence of four to ten months of confinement. The BIA rejected this argument and affirmed his ineligibility for cancellation of removal under § 1229b(a) and waiver under § 1182(h). Mejia-Rodriguez’s timely petition for review to this court makes three arguments. First, he claims that had he remained in the United States and not gone out of the country, he would have been ineligible for removal and thus that his constitutional rights under the Equal Protection Clause have been violated because the distinction was irrational. Second, he argues that the petty offense" }, { "docid": "11416456", "title": "", "text": "LYNCH, Circuit Judge. Jose Lorenzo Mejia-Orellana, a native and citizen of Honduras, petitions for review of a final order of removal of the Board of Immigration Appeals (BIA), which adopted and affirmed the decision of an Immigration Judge (IJ). The BIA affirmed the IJ’s decision that Mejia-Orellana was ineligible for a cancellation of removal under 8 U.S.C. § 1229b(a) because he acquired his lawful permanent resident status by fraud or misrepresentation and, further, that he was ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h). The BIA also determined that Mejia-Orellana was not denied due process. We affirm the BIA and deny the petition for review. In a matter of first impression, we uphold the BIA’s interpretation of 8 U.S.C. § 1229b(a) that an alien who has acquired his “lawful permanent resident status” by fraud or misrepresentation has not been lawfully admitted and so is ineligible for a cancellation of removal. I. Mejia-Orellana entered the United States without inspection in 1983. Two years later, he was arrested for criminal possession of marijuana over 20 grams in violation of Florida Statute § 893.13. He married a U.S. citizen in 1987, and in 1991 he applied for lawful permanent residence, but failed to disclose his 1985 arrest as he was required to do. He was granted permanent resident status on May 19, 1991. On April 13, 2002, Mejia-Orellana attempted to reenter the United States from the Canadian side of Niagara Falls. When he failed to present his 1-551 Alien Registration Card, he was denied reentry and paroled for deferred inspection in Boston. During his inspection in Boston on July 24, 2002, Mejia-Orellana disclosed his 1985 Florida arrest for marijuana possession as well as a guilty plea for marijuana possession in New York in 1993. The Im migration and Naturalization Service (INS) denied reentry and instituted removal proceedings charging Mejia-Orella-na was an inadmissible arriving alien under 8 U.S.C. § 1182(a)(2)(A)(i)(II), which classifies as inadmissible aliens who have been convicted of a crime relating to a controlled substance. Originally, the INS used the New York guilty plea as the basis for inadmissibility." }, { "docid": "12027899", "title": "", "text": "LYNCH, Chief Judge. In this immigration case, petitioner Vinicio Mejia-Rodriguez seeks review of a final order of removal, arguing that the Board of Immigration Appeals (“BIA”) erred in finding that (1) he was not eligible for an exception to the inadmissibility rules for those who have committed certain crimes and that (2) he was ineligible for discretionary relief from removal by the Attorney General. The petition does involve one issue which this court has not addressed before: the definition of “maximum penalty possible” in 8 U.S.C. § 1182(a)(2)(A)(ii)(II), the petty offense exception to 8 U.S.C. § 1182(a)(2)(A)©©, which otherwise renders inadmissible aliens who have committed crimes of moral turpitude. On that point, we hold that the term “maximum penalty possible” is determined in reference to the relevant statutory range of imprisonment and not the federal Sentencing Guidelines range. In this we agree with the Ninth Circuit Court of Appeals. See Mendez-Mendez v. Mukasey, 525 F.3d 828, 832-35 (9th Cir.2008). We deny the petition for review. Mejia-Rodriguez, who is from the Dominican Republic, became a lawful permanent resident of the United States on August 14,1994. He abused this privilege by committing two felonies. He was convicted on May 28, 1999 of selling telecommunication devices altered to obtain unauthorized use of services, in violation of 18 U.S.C. § 1029(a)(7), and of conspiracy to commit fraud in connection with access devices, in violation of 18 U.S.C. § 1029(b)(2). These crimes require proof of an intent to defraud. The statutory maximum sentence was ten years’ imprisonment for the first offense, id. § 1029(c)(1)(A)®, and five years’ imprisonment for the second, id. § 1029(b)(2), (c)(1)(A)®. His actual sentence was three years’ probation. Mejia-Rodriguez later left the United States and then applied for admission into the country at Logan Airport in Boston on February 28, 2005. Lawful permanent residents who have committed an offense under 8 U.S.C. § 1182(a)(2) are considered to be arriving aliens when they present themselves for admission into the United States. See 8 U.S.C. § 1101(a)(13)(C)(v); De Vega v. Gonzales, 503 F.3d 45, 46-47 (1st Cir.2007). Because of his criminal convictions, Mejia-Rodriguez" }, { "docid": "12027900", "title": "", "text": "permanent resident of the United States on August 14,1994. He abused this privilege by committing two felonies. He was convicted on May 28, 1999 of selling telecommunication devices altered to obtain unauthorized use of services, in violation of 18 U.S.C. § 1029(a)(7), and of conspiracy to commit fraud in connection with access devices, in violation of 18 U.S.C. § 1029(b)(2). These crimes require proof of an intent to defraud. The statutory maximum sentence was ten years’ imprisonment for the first offense, id. § 1029(c)(1)(A)®, and five years’ imprisonment for the second, id. § 1029(b)(2), (c)(1)(A)®. His actual sentence was three years’ probation. Mejia-Rodriguez later left the United States and then applied for admission into the country at Logan Airport in Boston on February 28, 2005. Lawful permanent residents who have committed an offense under 8 U.S.C. § 1182(a)(2) are considered to be arriving aliens when they present themselves for admission into the United States. See 8 U.S.C. § 1101(a)(13)(C)(v); De Vega v. Gonzales, 503 F.3d 45, 46-47 (1st Cir.2007). Because of his criminal convictions, Mejia-Rodriguez was served with a Notice to Appear, alleging that he was inadmissible and removable from the United States as an alien who has been convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)®©. There is no dispute that he had been convicted of crimes involving moral turpitude. The removal hearings before an Immigration Judge (“U”) were held on November 23, 2005, and over six months later, on June 15, 2006. Mejia-Rodriguez admitted the factual allegations and conceded re-movability. Not surprisingly, the IJ’s June 15, 2006 decision found that Mejia-Rodriguez was removable. The decision also held that Mejia-Rodriguez was ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) because his time period of physical presence and residence in the United States stopped as a matter of law in 1997 when he committed his criminal offenses, and those offenses were less than five years from the date of Mejia-Rodriguez’s admission into the United States as a lawful permanent resident. Furthermore, the IJ found that Mejia-Rodriguez was ineligible for the discretionary relief of waiver of" }, { "docid": "4836117", "title": "", "text": "HIGGINSON, Circuit Judge: Petitioner Gaspar Esparza-Rodríguez (“Rodriguez”) seeks review of the final order of the Board of Immigration Appeals (“BIA”) finding him ineligible for cancellation of removal under § 240A(b)(9)(C) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(l)(C), and deeming him ineligible to be admitted to the United States under § 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(I), on the basis that the Texas assault statute for which he was convicted qualified as a crime involving moral turpitude (“CIMT”). For the following reasons, we AFFIRM. FACTS AND PROCEEDINGS Rodriguez is a Mexican citizen who was admitted to the United States as a legal permanent resident on February 15, 1995. On April 18, 2001, he was convicted of two Class A misdemeanors: burglary of a vehicle under Texas Penal Code § 30.04(a) and assault under Texas Penal Code § 22.01. He was sentenced to sixty days in jail for each offense. After serving his sentence, Rodriguez returned to Mexico. On June 23, 2010, Rodriguez applied for entry into the United States as a legal permanent resident. The Department of Homeland Security (“DHS”) initiated removal proceedings against him by filing a Notice to Appear (“NTA”) in immigration court. The NTA charged him under § 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien ineligible for admission into the United States on account of his prior misdemeanor conviction for a CIMT. On August 13, 2010, Rodriguez appeared before an Immigration Judge (“IJ”), admitted to the seven factual allegations listed in the NTA, and denied the charge against him. Rodriguez later submitted an application for cancellation of removal under § 240A(a). of the INA, 8 U.S.C. § 1229b(a), and moved to terminate his removal proceedings, arguing that his assault conviction was not a CIMT and his burglary of a vehicle conviction fell within the petty offense exception under § 212(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) - After a hearing on February 16, 2011, the IJ determined that Rodriguez’s assault conviction was for a CIMT, denied his application for cancellation of removal, and ordered him removed from" }, { "docid": "12027902", "title": "", "text": "inadmissibility under 8 U.S.C. § 1182(h) because no visa petition had been filed on his behalf and because he could not meet the family hardship requirement because he was estranged from his wife. Mejia-Rodriguez appealed to the BIA on July 13, 2006, arguing he was not removable because he fit within the petty offense exception under 8 U.S.C. § 1182(a)(2)(A)(ii)(II). He argued that the BIA must measure the “maximum penalty possible” under the exception by reference only to the Sentencing Guidelines, which suggested a sentence of four to ten months of confinement. The BIA rejected this argument and affirmed his ineligibility for cancellation of removal under § 1229b(a) and waiver under § 1182(h). Mejia-Rodriguez’s timely petition for review to this court makes three arguments. First, he claims that had he remained in the United States and not gone out of the country, he would have been ineligible for removal and thus that his constitutional rights under the Equal Protection Clause have been violated because the distinction was irrational. Second, he argues that the petty offense exception must be read in light of the Guidelines and not the statutory máximums. Third, he alleges that he was eligible for a waiver under 8 U.S.C. § 1182(h) because he has “at least one U.S. citizen child.” We have jurisdiction to review the first two claims but not the third. Our review in this case, under the REAL ID Act, is restricted to constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(C), (a)(2)(D); De Araujo v. Gonzales, 457 F.3d 146, 153 (1st Cir.2006); see also Conteh v. Gonzales, 461 F.3d 45, 63-64 (1st Cir.2006)(discussing restrictions on judicial review in cases involving waiver of inadmissibility under § 1182(h)). The equal protection argument, cursorily made, is without merit, and is based on mistakes of both law and fact. To start, Mejia-Rodriguez’s argument is based entirely on the wrong section of the immigration statute. Mejia-Rodriguez asserts that the application of 8 U.S.C. § 1182(a)(2)(A)(i)(I) violated his constitutional rights because, if he had remained in the country, he would not have been subject to removal, and" }, { "docid": "12027905", "title": "", "text": "74 L.Ed.2d 21 (1982); United States ex rel Volpe v. Smith, 289 U.S. 422, 425-26, 53 S.Ct. 665, 77 L.Ed. 1298 (1933); Malagon de Fuentes, 462 F.3d at 503-04. His second argument concerning interpretation of the petty offense exception involves a pure issue of law and is reviewed de novo. See Elien v. Ashcroft, 364 F.3d 392, 396 (1st Cir.2004); see also Mendez-Mendez, 525 F.3d at 832. We will put aside the fact that the petty offense exception only applies to aliens who have committed only one crime, see 8 U.S.C. § 1182(a)(2)(A)(ii), (a)(2)(B), and Mejia-Rodriguez has committed two, to reach the merits of his argument. We will also set aside the fact that he conceded removability before the IJ and that binds him on the merits. See Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir.2006); Selimi v. INS, 312 F.3d 854, 860 (7th Cir.2002). The relevant portion of the petty offense exception provides that the inadmissibility rule for an alien who committed a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I), shall not apply if: The maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months.... 8 U.S.C. § 1182(a)(2)(A)(ii)(II). The statute itself makes no reference to the Sentencing Guidelines. The language of the statute plainly refers to the “maximum penalty possible” and that maximum is set by statute. That maximum possible punishment is for “the crime of which the alien was convicted,” a reference again to the statute of conviction. See Mendez-Mendez, 525 F.3d at 832-35. The fact that Mejia-Rodriguez was not actually sentenced to confinement of less than a year is irrelevant. The statutory language is plain and requires rejection of his argument. See Aquino-Encarnacion v. INS, 296 F.3d 56, 57 (1st Cir.2002) (per curiam). Mejia-Rodriguez’s third argument is that he was eligible for a waiver under 8 U.S.C. § 1182(h) because he has a child who is a U.S. citizen. This" }, { "docid": "23395392", "title": "", "text": "false information to a police officer in violation of Minn.Stat. § 609.506. The IJ noted that she considered these to be crimes involving moral turpitude and continued the hearing to provide an opportunity for the parties to address the issue of whether these convictions rendered Pinos ineligible for cancellation of removal. See § 1229b(b)(l)(C) (providing that cancellation of removal is available to an otherwise inadmissible alien if, among other things, the alien has not been convicted of an offense under § 1182(a)(2)); id. § 1182(a)(2)(A)® (stating an alien who has “committed, or who admits committing acts which constitute the essential elements of — (I) a crime involving moral turpitude ... is inadmissible”). At the continued hearing on September 22, 2005, the IJ concluded that Pinos was ineligible for cancellation of removal because he had been convicted of two crimes involving moral turpitude, referencing the domestic assault conviction and the conviction for providing false information to an officer. Pinos asserted that his domestic assault conviction might be vacated in his postconviction proceeding that was then pending in the state appellate court, and if so, he would be eligible for cancellation of removal under the petty-offenses exception. See id. § 1182(a)(2)(A)(ii)(II) (providing that an alien is not barred from seeking cancellation of removal on the basis of only one crime involving moral turpitude if the maximum penalty possible for the crime does not exceed imprisonment for one year and the alien was not sentenced to more than six months of imprisonment). His attorney expressly acknowledged that if the state court did not vacate the domestic assault conviction, Pinos’s convictions would render him ineligible for cancellation of removal. (See R. at 79-80.) The IJ agreed to continue the hearing. When the hearing reconvened on January 6, 2006, the state postconviction proceeding was still pending, and the IJ denied Pinos’s request for another continuance. Pinos acknowledged his convictions for domestic assault and providing false information to a police officer, and he did not again argue that he was eligible for cancellation of removal. The IJ concluded that these convictions rendered him ineligible for cancellation" }, { "docid": "6108211", "title": "", "text": "years; and (3) has not been convicted of any aggravated felony. Id. The BIA determined that Patel is not eligible for the remedy. It concluded that even assuming arguendo that Patel’s crime is not an aggravated felony, Patel has not “resided in the United States continuously for 7 years after having been admitted _” See § 1229b(a)(3). Under § 1229b(d)(l), “any period of continuous residence or continuous physical presence in the United States shall be deemed to end ... [ (A) ] when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien ... removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.” Id. The INS served Patel with a notice to appear in March 1999, 14 years after his admission to the United States. However, Patel was convicted of his crime in 1989, only 4 years after his admission. Furthermore, the crime renders him “removable from the United States under section 1227(a)(2)” and is “an offense referred to in section 1182(a)(2).” See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (rendering inadmissible any alien convicted of “a crime involving moral turpitude” other than purely political offenses); id. § 1227(a)(2)(A)® (rendering deportable any alien convicted “of a crime involving moral turpitude committed within five years ... after the date of admission” if the crime could result in a sentence of more than one year). In sum, because Patel does not challenge the conclusion that he was convicted in 1989 of a crime involving moral turpitude, which crime was committed within 5 years of his entry, and resulted in a sentence of 5 years, Patel’s period of continuous residence was capped at 4 years. Consequently, the BIA concluded that he is ineligible for cancellation of removal. D. Initial Proceedings Before this Court On June 4, 2003, Patel timely filed a petition for review of the BIA’s final order. On June 21 and 26, 2003, the government moved to dismiss the petition for lack" } ]

[ { "docid": "22611020", "title": "", "text": "HOLDAWAY, Associate Judge: This case concerns an appeal of a Board of Veterans’ Appeals (BVA) decision that the veteran had not submitted evidence that was both new and material with his request to reopen his claim that he had incurred multiple sclerosis during service. We hold that the evidence submitted was new and material and provides a basis for reopening the claim to consider the new evidence in the context of the other evidence in order to review the former disposition. Further, we hold that the BVA panels must consider only independent medical evidence to support their findings rather than provide their own medical judgment in the guise of a Board opinion. We will remand to the BVA for proper consideration of all relevant evidence, issues, and regulations in a manner consistent with this opinion. The law provides that when new and material evidence is presented or secured with respect to a claim which has been disallowed, “the [Secretary of Veterans Affairs] shall reopen the claim and review the former disposition.” 38 U.S.C. § 3008 (1988). This review requires a two-step analysis. “First, the BVA must determine whether the evidence is ‘new and material’. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Manio v. Derwinski, 1 Vet.App. 140, 145 (1991) (emphasis in the original). See also 38 C.F.R. § 19.194 (1990). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C. § 310 (1988). In determining whether multiple sclerosis was incurred in or aggravated by service of more than ninety days during war, the veteran is given the benefit of a presumption that if he develops multiple sclerosis to a degree of ten percent within seven years from the date of separation from service, such disease may be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the" } ]

[ { "docid": "1103734", "title": "", "text": "her establishment of the exact facts which the veteran was required to establish, prior to his death, on his claim for service connection for the kidney condition. Therefore, just as the veteran was required to submit new and material evidence in order to obtain reopening and readjudication of his kidney claim during his lifetime, so there must be new and material evidence in order for the accrued-benefits claimant to obtain full adjudication of the accrued-benefits claim based upon “the same factual basis” as the veteran’s denied service-connection claim. A similar result could obtain under 38 U.S.C. § 7105(e) and 38 C.F.R. §§ 3.104(a) and 3.105(a) (1993), even though the pertinent prior final denial occurred in an unappealed RO decision rather than a BVA decision. Cf. Suttmann, 5 Vet.App. at 135-36. Hence, the appellant may receive a merits adjudication of her accrued-benefits claim based on the veteran’s kidney disorder claim only if there is new and material evidence, as described below, since the time of the BVA’s April 1985 denial of the veteran’s service-connection claim based on that disorder. 4. New and Material Evidence. Where new and material evidence is required before a claim may be fully adjudicated, the Board must conduct a “two-step” analysis. Manio, 1 Vet.App. at 145. First, it must determine whether the evidence presented or secured since the pertinent prior final disallowance is “new and material”. If it is, the Board must then adjudicate the claim on the basis of all the evidence, both new and old. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). The determination as to whether evidence is “new and material” is a question of law subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court recently synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which," }, { "docid": "1103735", "title": "", "text": "on that disorder. 4. New and Material Evidence. Where new and material evidence is required before a claim may be fully adjudicated, the Board must conduct a “two-step” analysis. Manio, 1 Vet.App. at 145. First, it must determine whether the evidence presented or secured since the pertinent prior final disallowance is “new and material”. If it is, the Board must then adjudicate the claim on the basis of all the evidence, both new and old. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). The determination as to whether evidence is “new and material” is a question of law subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court recently synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra, ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). In addition, when the reopening is sought as part of an accrued-benefits claim under 38 U.S.C. § 5121(a), the new and material evidence must have been in the veteran’s file at time of death or be deemed to have been so under Hayes, supra. In the instant case, the Court concludes that there was no such new and material evidence since the time of the BVA’s prior final disallowance in April 1985 of the veteran’s kidney-disorder claim, and that, therefore, the Board was correct in not proceeding to the section 5108 step-two full adjudication of the accrued-benefits claim derived from the veteran’s claim. The evidence of record since the 1985 BVA denial consists of the following: (1) reports of the veteran’s medical" }, { "docid": "10148542", "title": "", "text": "the VA’s practice with regard to reopening claims upon new and material evidence had been in conformance with the statutory requirements prior to the VJRA. The parties filed those memoranda on November 12 and 19, 1992. II. ANALYSIS A. Two-Part Test for Reopening Previously and Finally Denied Claims Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Secretary of Veterans Af fairs (Secretary) is required to reopen a previously and finally denied claim when “new and material evidence” is presented or secured with respect to that claim. See also 38 U.S.C.A. § 7104(b) (West 1991). On claims to reopen previously and finally denied claims, the BVA must conduct a two-step analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disal-lowance of the claim is “new and material”. If it is, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). In this case, which was decided prior to this Court’s decision in Manió, supra, the Board did not apply the two-step test for adjudicating claims to reopen previously and finally denied claims. Instead, it stated the issue as “whether the additional evidence presented creates a new factual basis warranting allowance of service connection”, and concluded that “the additional evidence consisting of personal hearing testimony does not reasonably establish that the veteran’s multiple sclerosis is the result of his active service.” Spencer, BVA 90-25138, at 6. Because the BVA did not apply the two-step Manió test, it is not clear from its decision whether the Board concluded that there was new and material evidence to reopen the veteran’s claim for service connection of his MS. The determination as to whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin v. Derwinski," }, { "docid": "10155078", "title": "", "text": "Affairs) (VA) regional office (RO) in January 1972, R. at 49-50, and claims for hypertensive heart disease and beriberi were denied by a prior final BVA decision in July 1985, R. at 121. Pursuant to 38 U.S.C. § 5108 (formerly § 3008), a previously and finally disallowed claim must be reopened by the Secretary when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. § 7104(b) (formerly § 4004). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material”. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). “New evidence” is evidence that is not “merely cumulative” of other evidence on the record. Ibid. Evidence is “material” where it is “relevant and probative” and where there is “a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Ibid. If the evidence is new and material, the Board must then review the new evidence “in the context of” the old to determine whether the prior disposition of the claim should be altered. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). Whether evidence is “new and material” is a conclusion of law which this Court reviews de novo under 38 U.S.C. § 7261(a)(1) (formerly § 4061). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). It is unclear whether the Board found the evidence not new and material or whether it reopened the goiter, hemorrhoid, hypertensive heart disease, and beriberi claims and denied them on the merits. In any event, the Court holds that the appellant has not submitted new and material evidence since the prior final denials of those claims. None of the newly submitted evidence relates the onset of those disabilities to the veteran’s service, and thus the evidence is not material. Since there was no new and material evidence," }, { "docid": "21495226", "title": "", "text": "1992 letter from Dr. McSwain that stated: We still feel [that the veteran’s] service time in 1953 worsened his problem and contributed to the uncontrolled hypertension we have today 200/110. It stands to reason that this young man should never [have] been in service in the first place, but his 3 years 15 day stay certainly didn’t help his interatrial septal defect, which is now causing serious complications. R. at 240, 264. In the July 12, 1993, BVA decision here on appeal, the Board found that the newly submitted evidence was cumulative and insufficient to reopen the claim for service connection for a heart condition. R. at 8. II. Analysis A. Generally Applicable Law The Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to the basis for the denial of that claim. See 38 U.S.C. §§ 5108, 7104(b). On a claim to reopen a previously and finally disallowed claim, the BVA must conduct a “two-step analysis” under section 5108. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is new and material “when viewed in the context of all the evidence, both new and old”, Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and when “the credibility of the [new] evidence” is presumed, Justus v. Principi, 3 Vet.App. 510, 513 (1992). Second, if the evidence is new and material, the Board must then review it on the merits “in the context of the other evidence of record” to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). The Court has synthesized the applicable law as follows: “New evidence” is evidence which is not “merely cumulative” of other evidence of record. Colvin, supra. “Evidence is ‘material’ where [assuming its credibility] it is relevant to and probative of the issue at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and" }, { "docid": "22025637", "title": "", "text": "Analysis The appellant, through counsel, maintains that the Board’s decision denying the claims should be reversed because the Board failed to consider the benefit-of-the-doubt rule, made improper findings in discrediting the medical opinions of Dr. Shaw and Dr. Coleman, and failed to give sufficient reasons or bases for discounting those opinions. Brief (Br.) at 4-6. A. New and Material Evidence Under the applicable law, the Secretary must reopen a prior final disallowance of a claim when “new and material evidence” is presented or secured with respect to the basis for the disallowance of that claim. See 38 U.S.C. §§ 5108, 7104(b). On a claim to reopen, a “two-step analysis” must be conducted under section 5108. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be determined whether the evidence presented or secured since the last final dis-allowance of the claim is new and material. See Blackburn v. Brown, 8 Vet.App. 97, 102 (1995); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Second, if the evidence is new and material, the Board must then reopen the claim and “review the former disposition of the claim”, 38 U.S.C. § 5108 — that is, review all the evidence of record to determine the outcome of the claim on the merits. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). A Board determination as to whether evidence is. “new and material” for purposes of reopening is a question of law subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The Court has recently held: The first step of the Manio two-step process as to a claim to reopen involves three questions: Question 1: Is the newly presented evidence “new” (that is, not of record at the time of the last final dis-allowance of the claim and not merely cumulative of other evidence that was then of record, see Struck v. Brown, 9 Vet.App. 145, 151 (1996); Blackburn, Cox, and Colvin, all supra)? Question" }, { "docid": "23365531", "title": "", "text": "Court has held that such a claim is an original claim, which is not subject to the rules governing finality and reopening of prior final disallowances and which generally requires a current rating examination before it can be fairly adjudicated. See 38 U.S.C. §§ 5108, 7104(a), (b); Suttmann v. Brown, 5 Vet.App. 127, 136 (1993); Proscelle v. Derwinski, 2 Vet.App. 629, 631-32 (1992); see also Hauck v. Brown, 6 Vet.App. 518 (1994) (per curiam). . See, e.g., Ardison v. Brown, 6 Vet.App. 405, 407 (1994); Caffrey v. Brown, 6 Vet.App. 377, 380-82 (1994); Frazer v. Brown, 6 Vet.App. 19 (1993); Waddell v. Brown, 5 Vet.App. 454, 456-57 (1993); Shoemaker v. Derwinski, 3 Vet.App. 248, 252-55 (1992); Ashmore v. Derwinski, 1 Vet.App. 580, 581 (1991); Ferraro v. Derwinski, 1 Vet.App. 326, 328-31 (1991); Barnes v. Derwinski, 1 Vet.App. 288 (1991). . See, e.g., Scott (Charles) v. Brown, 7 Vet.App. 184, 188-89, (1994); Caffrey, 6 Vet.App. at 382-84; Frazer, 6 Vet.App. at 19; Waddell, 5 Vet.App. at 455-56; Quarles v. Derwinski, 3 Vet.App. 129, 134-36 (1992). . In Bernard, the underlying application for benefits involved a claim for disability compensation which had been denied by a prior final VA adjudication. Hence, the claim to reopen that prior final adjudication was required to be adjudicated under the two-step process set forth in Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it had to be determined whether the evidence presented or secured since the prior final disallowance of the claim was \"new and material” under 38 U.S.C. § 5108. Bernard v. Brown, 4 Vet.App. 384, 389 (1993). If it was, the adjudicator then would have to review the new evidence in the context of all the evidence in order to determine whether the prior disposition of the claim should be altered. Ibid.: see 38 U.S.C. §§ 7104(b), 7105(c), 5108; Manio, supra; Suttmann v. Brown, 5 Vet.App. 127, 135-36 (1993); Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The first step of Manio/Bernard is purely procedural. . See supra notes 3 and 4. . See" }, { "docid": "20870057", "title": "", "text": "the claimant fails to timely appeal that decision by filing a Notice of Disagreement and a substantive appeal within the one-year period prescribed in 38 U.S.C.A. § 7105(b)(1) (West 1991), that decision becomes final and the claim may not “thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with” title 38 of the United States Code. 38 U.S.C.A. § 7105(c) (West 1991). The exception to both finality rules is 38 U.S.C.A. § 5108 (West 1991) which states that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary [of Veterans Affairs (Secretary) ] shall reopen the claim and review the former disposition of the claim.” (Emphasis added.) See Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991); see also Suttmann v. Brown, 5 Vet.App. 127, 135-36 (1993) (applying to claims finally denied by RO under section 7105(c) the section 5108 provisions for reopening claims finally denied by BVA upon the submission of new and material evidence). Therefore, once an RO or BVA decision becomes final under sections 7104(b) or 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or readjudicated by the VA. 38 U.S.C.A. § 5108; see also McGinnis v. Brown, 4 Vet.App. 239, 243-45 (1993). Further, any such reopening or readjudication of a finally denied claim by the RO or the BVA in the absence of new and material evidence must be considered “in excess of statutory jurisdiction, authority, [and] limitations,” and will be held “unlawful and set aside.” McGinnis, 4 Vet.App. at 244 (citing 38 U.S.C.A. § 5108). In Manio v. Derwinski, 1 Vet.App. 140 (1991), issued before the BVA’s decision on appeal to this Court but after all previous BVA decisions in this case which disallowed appellant’s- claim, this Court established that the BVA must perform a two-step analysis when a veteran seeks to reopen a claim based upon new evidence. First, the BVA must determine whether the evidence is “new and material”. 38 U.S.C. § [5108]. Second, if the BVA determines that the claimant has" }, { "docid": "1104140", "title": "", "text": "ears should be service connected because both had shown the same pattern of in-service hearing loss followed by continued post-service hearing loss due to in-service noise trauma. R. at 122; see also 124-25. In the June 16, 1993, BVA decision here on appeal, the Board determined that the evidence presented by the veteran was new but was not material because the 1971 and 1979 audiograms did not provide the required nexus between right-ear hearing loss and a disease or injury incurred in service, and denied reopening of the claim. R. at 5-6. II. Analysis A. Applicable Law The Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C. §§ 5108, 7104(b). On a claim to reopen a previously and finally disallowed claim, the BVA must conduct a “two-step analysis” under section 5108. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is new and material “when viewed in the context of all the evidence, both new and old”, Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and presuming “the credibility of the [new] evidence”, Justus v. Principi, 3 Vet.App. 510, 513 (1992). If the evidence is new and material, the Board must then review it on the merits “in the context of the other evidence of record” to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). The Court has synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox (Billy) v. Brown," }, { "docid": "23651623", "title": "", "text": "violation of 38 C.F.R. § 3.303(a) requirement to base adjudication “on review of the entire evidence of record” — of “the existence of evidence that did exist”). According to applicable current law, once a claimant has submitted a well-grounded claim, the Secretary is required to assist that claimant in developing the facts pertinent to the claim. See 38 U.S.C. § 5107(a); 38 C.F.R. § 3.159 (1994); Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). A failure to fulfill the duty to assist cannot constitute CUE. See Caffrey v. Brown, 6 Vet.App. 377, 383-84 (1994). But see id, at 384 (Steinberg, J., concurring in part and dissenting in part). According to applicable current law, the Secretary must reopen a previous final disallowance of a claim when “new and material evidence” is presented or secured with respect to the basis for the disallowance of that claim. See 38 U.S.C. §§ 5108, 7105(c); Suttmann v. Brown, 5 Vet.App. 127, 135 (1993) (applying section 5108 to claim finally disallowed by RO). On a claim to reopen, a “two-step analysis” must be conducted under section 5108. Manio v. Derwinski 1 Vet.App. 140, 145 (1991). First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim (including a refusal to reopen because of a lack of new and material evidence) is new and material. See Evans v. Brown, 9 Vet.App. 273, 283-85 (1996); Blackburn v. Brown, 8 Vet.App. 97, 102 (1995); Cox (Billy) v. Brown, 5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Second, if the evidence is new and material, then the claim must be reopened and all the evidence of record reviewed to determine the outcome of the claim on the merits. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). As to step one under Manió, the determination whether to reopen the disallowance of a claim, the Court has synthesized the applicable law as follows: “New evidence” is that which is not merely cumulative of other evidence of record. [See Colvin, supra.] Evidence is “material” where it is relevant" }, { "docid": "10150477", "title": "", "text": "213 (1991); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In so concluding, the Court rejects as not “material” a medical opinion by a treating physician that his patient currently suffers from a psychiatric problem that, based (as the majority concludes) on what the patient recounted to him about in-service treatment and symptoms, is connected to his service 20 years before. For the reasons that follow, I believe that the majority’s analysis is inconsistent with both the record on appeal and this Court’s precedents, and will sow great confusion in the adjudication process throughout the Department of Veterans Affairs (VA). I. Law on Reopening Under 38 U.S.C.A. § 7104(b) (West 1991), a claim previously and finally denied by the Board of Veterans’ Appeals (BVA or Board) may not be reopened except in accordance with section 5108. On claims to reopen previously and finally denied claims, the Board must conduct a “two-step analysis” under section 5108. Manio, supra. First, it must determine whether the evidence presented or secured since the pertinent prior final disallowance is “new and material”. Ibid. If it is, the Board must then adjudicate the claim on the basis of all the evidence, both new and old. See Jones, supra. The determination as to whether evidence is “new and material” is a question of law, which this Court reviews de novo under 38 U.S.C.A. § 7261(a)(1) (West 1991). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The Court recently synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra, ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). See also Justus" }, { "docid": "22184080", "title": "", "text": "to 38 U.S.C. § 5108, the Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to the basis for the denial of that claim. See also 38 U.S.C. § 7104(b). On claims to reopen previously and finally disallowed claims, the BVA must conduct a “two-step” analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). The Board must first determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material” when viewed in the context of all the evidence, see Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and when “the credibility of the [new] evidence” is presumed, Justus v. Principi, 3 Vet.App. 510, 513 (1992). If the evidence is new and material, the Board must then review the new evidence “in the context of’ the old to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). A Board determination as to whether evidence is “new and material” is a conclusion of law subject to de novo review in this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski, 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. The Court has synthesized the applicable law as follows: “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand and which, as this Court stated in Colvin, supra, ... must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox (Billy) v. Brown, 5 Vet.App. 95, 98 (1993). Lay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108. See Moray v. Brown, 5 Vet.App. 211, 214 (1993). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the" }, { "docid": "23066551", "title": "", "text": "for beriberi must take into account the veteran’s disability due to his heart disease. Alternatively, if appropriate, the Board may assign a rating for the veteran’s heart disability as a “secondary condition” under 38 C.F.R. § 3.310(a) (1992). B. Threshold Standard for POW Presumption Claims Although the veteran’s claims for service connection for beriberi and beriberi heart disease were previously and finally denied by unappealed RO decisions in October 1946 and September 1985 (R. at 2, 26-27), the veteran was not required to submit “new and material evidence” in order to give rise to a duty on the part of the RO and BVA to adjudicate those claims. 38 U.S.C.A. § 5108 (West 1991). Rather, for the reasons stated in part B.2., below, the Court holds that he was required only to submit a well-grounded claim for service connection. 1. Reopening claims previously denied by RO: Pursuant to 38 U.S.C.A. § 7105(c) (West 1991), when a claim is denied by an RO decision and the claimant fails to file a timely appeal, that decision becomes final and the claim may not thereafter be reopened or allowed “except as may otherwise be provided by regulations not inconsistent with” title 38, U.S.Code. See also 38 U.S.C.A. § 7104(b) (West 1991) (establishing finality of claims denied by BVA decision). We conclude, for the reasons set forth below, that this finality rule is subject to the exception in 38 U.S.C.A. § 5108 (West 1991) that requires the Secretary to reopen and readjudicate a claim when “new and material evidence” is presented or secured with respect to that claim. Cf. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991) (section 5108 as exception to section 7104(b)); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991) (same). In Manió, Jones, and many subsequent cases, the Court has applied the section 5108 provision for reopening upon new and material evidence as an exception to the finality of prior BVA decisions under 38 U.S.C.A. § 7104(b) (West 1991). That result clearly follows from the text of section 7104(b), which expressly provides that BVA decisions will be final “[ejxcept as" }, { "docid": "22184079", "title": "", "text": "anxiety conditions, the Board concluded that an increased rating to 40% was warranted, and granted it as a combined rating for both the ulcer and the anxiety. R. at 18, 23-4. The Board found: “[T]he primary component of the service-connected subtotal gastrectomy for a duodenal ulcer with psyehophysiologieal gastrointestinal reaction and anxiety is the organic rather than the psychiatric component. The veteran’s psychiatric component is currently dominated by the residuals of his [CVA], a non[-]service-connected disability.” R. at 23. The Board did not determine an effective date for the increased rating for service-connected ulcer and anxiety conditions. In a July 1994 motion for leave to file a supplemental ROA out of time, the appellant advised that a June 1993 RO decision had awarded an effective date of May 14, 1990, for the increased rating for the veteran’s ulcer and anxiety conditions. In August 1994, the Secretary opposed the supplemental filing and moved to strike it because it post dates the BVA decision here on appeal. II. Analysis of Service-Connection Claims A. Generally Applicable Law Pursuant to 38 U.S.C. § 5108, the Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to the basis for the denial of that claim. See also 38 U.S.C. § 7104(b). On claims to reopen previously and finally disallowed claims, the BVA must conduct a “two-step” analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). The Board must first determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material” when viewed in the context of all the evidence, see Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and when “the credibility of the [new] evidence” is presumed, Justus v. Principi, 3 Vet.App. 510, 513 (1992). If the evidence is new and material, the Board must then review the new evidence “in the context of’ the old to determine whether the prior disposition of the claim should be altered. Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). A Board determination as to whether evidence is “new" }, { "docid": "18546852", "title": "", "text": "and related benefits under chapter 17 of title 38, U.S.Code. R. at 6,19. II. Analysis A. New and Material Evidence Under the applicable law, the Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to the basis for the disallowance of that claim. See 38 U.S.C. §§ 5108 (“[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim”), 7105(c) (“[i]f no [NOD] is filed in accordance with this chapter within the prescribed period, the [RO] action or determina tion shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title”); Suttmann v. Brown, 5 Vet.App. 127, 135 (1993) (applying section 5108 to claim denied by final RO decision). On a claim to reopen a previously and finally disallowed claim, a “two-step analysis” must be conducted under section 5108. Manio, 1 Vet.App. at 145. First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is new and material “when viewed in the context of all the evidence, both new and old”, Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), and when “the credibility of the [new] evidence” is presumed, Justus v. Principi, 3 Vet.App. 510, 513 (1992). Second, if the evidence is new and material, then the claim must be reopened and all the evidence of record reviewed to determine the outcome of the claim on the merits. See Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991). As to step one, the determination whether to reopen a previously and finally disallowed claim, the Court has synthesized the applicable law as follows: “New evidence” is that which is not merely cumulative of other evidence of record. [See Colvin, supra.] Evidence, is “material” where it is relevant to and probative of the issue at hand and where there is a reasonable possibility that, when" }, { "docid": "18546727", "title": "", "text": "decision final). However, “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 5108; see also 38 U.S.C. § 7104(b); Spencer v. Brown, 4 Vet.App. 283, 286-87 (1993); Thompson v. Derwinski 1 Vet.App. 251, 253 (1991); Suttmann v. Brown, 5 Vet.App. 127, 135-36 (1993) (applying § 5108 provisions for reopening final claims to RO decisions rendered final by operation of § 7105(c)). Evidence is new when it is not merely cumulative of other evidence of record. Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Evidence is material when it is probative of the issue at hand, i.e., “when it ‘tend[s] to prove, or actually prov[es]’ ... the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim,” and when, in light of all the evidence of record, there is a reasonable possibility that the outcome of the claim on the merits would be changed. Evans v. Brown, 9 Vet.App. 273, 283-84 (1996) (quoting Black’s Law Dictionary 1203 (6th ed. 1990)). Whether evidence is new and material is a question of law this Court reviews de novo. Spencer, 4 Vet.App. at 287. Section 1111 of title 38, U.S.Code, titled “[p]resumption of sound condition,” provides that wartime veterans shall be considered to have been in sound condition at their entrance into service “except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.” The statutes also contain a presumption of aggravation: Where it is established that a condition preexisted service, that condition “will be considered to have been aggravated by active military ... service[ ] where there is an increase in" }, { "docid": "6785455", "title": "", "text": "reopened or allowed, except as may otherwise be provided by regulations not inconsistent with” title 38 of the United States Code. 38 U.S.C. § 7105(c); see also Person v. Brown, 5 Vet.App. 449, 450 (1993) (failure to appeal an RO decision within the one-year period renders the decision final). The exception to these rules states that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 5108; see also 38 U.S.C. § 7104(b); Spencer v. Brown, 4 Vet.App. 283, 286-87 (1993), aff'd, 17 F.3d 368 (Fed.Cir.1994); Thompson v. Derwinski 1 Vet.App. 251, 253 (1991); see generally Suttmann v. Brown, 5 Vet.App. 127, 135-36 (1993) (applying § 5108 provisions for reopening final claims to RO decisions rendered final by operation of § 7105(c)). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has specifically held that the Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and that before the Board may reopen such a claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996). “Moreover, once the Board finds that no such evidence has been offered, that is where the analysis must end.” Butler v. Brown, 9 Vet.App. 167, 171 (1996). 2. Manió Two-Step Becomes Three In Manio v. Derwinski 1 Vet.App. 140, 145 (1991), we held that the Board must perform a two-step analysis when a veteran seeks to reopen a final decision based on new and material evidence. First, it must determine whether the evidence presented or secured since the last final disallowance is “new and material.” Id. If it is, we held that the Board must then reopen the claim and “evaluate the merits of the veteran’s claim in light of all the evidence, both new and old.” Id.; see also Evans v. Brown, 9 Vet.App. 273 (1996). Today, in Elkins v. West, 12 Vet.App. 209 (1999), the en banc Court essentially holds that the recent decision of the" }, { "docid": "23365532", "title": "", "text": "In Bernard, the underlying application for benefits involved a claim for disability compensation which had been denied by a prior final VA adjudication. Hence, the claim to reopen that prior final adjudication was required to be adjudicated under the two-step process set forth in Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it had to be determined whether the evidence presented or secured since the prior final disallowance of the claim was \"new and material” under 38 U.S.C. § 5108. Bernard v. Brown, 4 Vet.App. 384, 389 (1993). If it was, the adjudicator then would have to review the new evidence in the context of all the evidence in order to determine whether the prior disposition of the claim should be altered. Ibid.: see 38 U.S.C. §§ 7104(b), 7105(c), 5108; Manio, supra; Suttmann v. Brown, 5 Vet.App. 127, 135-36 (1993); Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 215 (1991); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The first step of Manio/Bernard is purely procedural. . See supra notes 3 and 4. . See 38 U.S.C. § 1710(a)(1)(A), (E) (providing eligibility for VA health-care benefits to any veteran for a service-connected disability; to any veteran with less than a 50%-rated service-connected disability, for any disability)." }, { "docid": "9631256", "title": "", "text": "materiality component (whether the evidence found to be “new” is also probative), “the focus is on the new evidence; as to the second materiality component (whether there is a reasonable possibility that the outcome on the merits would be changed), the focus is on all of the evidence of record rather than just on the new evidence.” Evans, 9 Vet.App. at 283. If the' evidence satisfies the three Evans questions and is thus new and material, then the second step of the Manio two-step process applies. The Board must then reopen the claim and “review the former disposition of the claim”, 38 U.S.C. § 5108— that is, review all the evidence of record to determine the outcome of the claim on the merits. See Manio, supra; Jones (McArthur) v. Derwinski 1 Vet.App. 210, 215 (1991). A Board determination as to whether evidence is “new and material” for purposes of reopening is a question of law subject to de novo review by this Court under 38 U.S.C. § 7261(a)(1). See Masors v. Derwinski 2 Vet.App. 181, 185 (1992); Jones, 1 Vet.App. at 213; Colvin, supra. In this case, the Board found that evidence submitted since the April 1983 final RO decision denying § 1310 DIC was new and material (specifically, Dr. Sheridan’s February 1993 medical report) but denied the DIC claim on the merits. R. at 7. The last final disallowance of this claim was the April 1983 RO decision. R. at 392; see Evans, supra. Subsequent to April 1983, the appellant submitted Dr. Sheridan’s February 1993 report. R. at 916. That medical report was “new” because it provided evidence that was not cumulative of any already in the file. See Evans, supra; Struck v. Brown, 9 Vet.App. 145, 151 (1996); Colvin, supra. The next question is whether that evidence was probative of the issue at hand. See Evans, supra. The RO’s April 1983 disallowance was based on a lack of evidence showing that the veteran had had heart disease in service or within the presumption period or showing that his service-connected disabilities contributed to his death. R. at 392. Dr." }, { "docid": "23055376", "title": "", "text": "that the BVA erred in failing to assist the veteran in developing the facts pertinent to his claim for an increased rating for his service-connected condition, and in failing to adjudicate the veteran’s claims for service connection of a psychiatric condition as secondary to his service-connected condition and for a total disability rating based on unemployability. A. Increased Rating for Residuals of Maxillary Fracture The Court notes that, although in 1987 the BVA had denied the veteran’s claim for an increased rating for the service-connected residuals of the maxillary fracture, his claim for an increased rating presently on appeal is not a reopened claim subject to the requirement that there be “new and material” evidence to justify reopening under 38 U.S.C. § 5108 (formerly § 3008), cf. Manio v. Derwinski, 1 Vet.App. 140, 145-46 (1991); Jones (McArthur) v. Derwinski, 1 Vet.App. 210, 213-15 (1991), because the veteran claims that his service-connected disability has undergone an increase in severity since that prior claim. R. at 32. The current claim is thus a new claim. It is not subject to the provisions of 38 U.S.C. §§ 7104(b) (formerly § 4004) and 5108 prohibiting reopening of previously disallowed claims except upon new and material evidence. In order to trigger the Secretary’s duty to assist a VA claimant under 38 U.S.C. § 5107(a) (formerly § 3007), the claimant’s evidentiary burden is to submit “evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” See Moore (Howard) v. Derwinski, 1 Vet.App. 401, 405 (1991); Murphy (Bonnie) v. Derwinski, 1 Vet.App. 78, 81 (1990). “A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [§ 5107(a) ].” Moore, supra (quoting Murphy, supra). In the present case, service connection for the veteran’s maxillary condition was established in 1971. R. at 8. Evidence on file at the time of the previous Board decision in 1987 indicated that the condition caused some interference with either speech" } ]

[ { "docid": "22762391", "title": "", "text": "1649, 84 L.Ed.2d 714 (1985), the Tenth Circuit refrained from exercising jurisdiction over the sua sponte issue. Belay-Gebru, 327 F.3d at 1001. The reasoning of Belay-Gebru is persuasive. The Code of Federal Regulations suggests that no meaningful standard exists against which to judge an IJ’s decision to exercise sua sponte authority to reopen deportation proceedings. The relevant provision states that “[a]n Immigration Judge may upon his or her own motion at any time, or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision.... ” 8 C.F.R. § 1003.23 (emphasis added). The permissive, “may,” indicates that reopening the case is not mandatory, but rather within the discretion of the IJ. See Blaok’s Law DICTIONARY 993 (7th ed.1999). That is, it implies that the IJ is under no obligation to reopen a ease. Were the presence of any circumstance sufficient to compel an IJ to reopen the case, then the plain meaning of “may” would be contravened. The Code of Federal Regulations thus suggests that a reviewing court has no legal standard against which to judge an IJ’s decision not to invoke its sua sponte authority. 8 C.F.R. § 1003.23. Because Supreme Court precedent prohibits review of such discretionary decisions, see Heckler, 470 U.S. at 830, 105 S.Ct. 1649, this Court lacks jurisdiction. III. CONCLUSION For the reasons stated above, we lack jurisdiction to consider this appeal. The petition for review of the BIA’s ruling is DENIED. . The Attorney General set the earliest filing date that petitioners could file a special motion to reopen as January 16, 1998. 64 Fed. Reg. 13664 (March 22, 1999). . This provision in the C.F.R. was formerly numbered as § 3.23(b). . A denial of an untimely motion to reopen has the same legal effect as a failure to exercise sua sponte authority to reopen a case. Wang, 260 F.3d at 453 n. 4 (treating the standard for reopening a case sua sponte as the same standard for reopening a case where a petitioner has filed an untimely motion)." } ]

[ { "docid": "14850702", "title": "", "text": "He argued the IJ committed legal errors in denying his motion to reopen or reconsider because: there was no conflict between the provision that an IJ can reconsider or reopen a proceeding “at any time” and the post-departure bar; the post-departure bar did not apply to those, like him, who had already been removed and were no longer in removal proceedings; he was not legally removed; the regulation was contrary to the applicable statute; the regulation was unconstitutional; the Seventh Circuit’s Flores decision constituted “extraordinary circumstances sufficient to invoke sua sponte authority”; and Rosillo-Puga was not time-barred even though three and one-half years had elapsed since his removal. See Notice of Appeal, Admin. R. at 42. The BIA affirmed the IJ’s decision and dismissed Rosillo-Puga’s appeal. The BIA agreed with the IJ that 8 C.F.R. § 1003.23(b)(1) deprived the immigration court of jurisdiction over motions to reopen or reconsider made by aliens subsequent to their departure from the United States. The Board also agreed with the IJ’s conclusion that the more specific post-departure bar trumps the more general language giving the IJ authority to reopen or reconsider a proceeding sua sponte. This petition for review followed. Addressing the issues as the parties have presented them, we deny the petition for review. DISCUSSION I. Standard of Review The BIA in this case issued a single-member brief order, pursuant to 8 C.F.R. § 1003.1(e)(5), affirming the IJ’s decision. “We have held ... that the (e)(5) brief order ... produces an independent BIA decision that constitutes the final order of [the agency].” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006). “Accordingly, in deference to the agency’s own procedures, we will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in' its affirmance.” Id. ‘When reviewing a BIA decision, we search the record for ‘substantial evidence’ supporting the agency’s decision.” Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir.2007). “Our duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole.” Id. (quoting Uanreroro, 443" }, { "docid": "7376018", "title": "", "text": "may be appropriate. As we described in more detail above, Alzaarir informed the BIA that Lin worked hard to get an agreement but was ultimately unsuccessful. In the agency, he also stated he had evidence of an agreement, but the evidence he presented — the e-mail exchange between Lin and Cheng from December 2007 — did not show that an agreement had been reached. Furthermore, the BIA considered that even when DHS informed Alzaarir’s current counsel that DHS would not join a joint motion, it was not until several months later that Alzaarir filed his second motion to reopen. Given the record in this case, the BIA did not abuse its discretion in concluding that Alzaarir did not exercise the diligence necessary to win equitable tolling and in consequently denying his motion to reopen. Accordingly, we will deny the petition for review. . Although the Notice to Appear charged Alzaarir as a native and citizen of Jordan, and the Immigration Judge (\"IJ”) referred to him as possibly stateless, Alzaarir testified that he is a Palestinian citizen, and both parties describe him this way in their briefs. . We do not consider the BIA’s decision not to reopen the proceedings sua sponte. First, it does not appear that Alzaarir challenges that decision. Second, in any event, that decision is a discretionary decision beyond our jurisdiction. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) (\"Because the BIA retains unfettered discretion to decline to sua sponte reopen or reconsider a deportation proceeding, this court is without jurisdiction to review a decision declining to exercise such discretion to reopen or reconsider the case.\") . The Government asks us not to consider an argument for tolling based on reliance because it was not presented to the agency. We consider the argument only in the context it was and is presented, namely, as support for diligence under the circumstances." }, { "docid": "19505011", "title": "", "text": "Borbot failed to meet his \"burden in establishing [that] he does not pose a risk of danger to property.\" App. 80 (citing Matter of Urena , 25 I & N Dec. 140, 141 (BIA 2009) ). Borbot appealed the IJ's decision to the BIA, arguing that the IJ \"gave too much weight to his pending criminal charges in Russia\" and that the charges were pretextual and \"lodged in retaliation for [Borbot's] political opposition to ... Vladimir Putin.\" App. 76. The BIA upheld the IJ's decision, explaining that \"an alien in bond proceedings is not entitled to the benefit of the doubt when it comes to evidence of potential dangerousness.\" Id. Borbot later requested a redetermination hearing, which the IJ denied on April 13, 2017, finding that there had been no material change in circumstances. About three months later, Borbot filed in the District Court a petition for writ of habeas corpus under 28 U.S.C. § 2241, alleging that his continued detention deprived him of due process unless the government could show \"clear and convincing evidence of risk of flight or danger to the community.\" App. 24 (citations omitted). On July 19, 2017, nearly 15 months after Borbot's arrest, the District Court dismissed his petition as facially insufficient, concluding that Borbot was not entitled to a new bond hearing unless he could show that he was denied due process in his initial hearing, which he did not attempt to do. Borbot timely appealed. II The District Court had jurisdiction under 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 1291. Because the District Court dismissed Borbot's petition without holding an evidentiary hearing, our review is plenary. See Fahy v. Horn , 516 F.3d 169, 179 (3d Cir. 2008) ; see also Ezeagwuna v. Ashcroft , 325 F.3d 396, 405 (3d Cir. 2003) (reviewing de novo whether an alien's due process rights were violated). III \"[T]he Fifth Amendment entitles aliens to due process of law in deportation proceedings.\" Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The Supreme Court has repeatedly recognized that" }, { "docid": "22663335", "title": "", "text": "sua sponte is a discretionary decision that cannot be reviewed by the Courts of Appeals. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004) (holding that because the “Code of Federal Regulations suggests that no meaningful standard exists against which to judge an IJ’s decision to exercise sua sponte authority to reopen deportation proceedings,” such decisions are committed to the discretion of the BIA and therefore unreviewable); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003) (same); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003) (same); Ekimian v. INS, 303 F.3d 1153, 1157-58 (9th Cir.2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999) (same); see also Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003) (“[F]ailure to reopen sua sponte is a discretionary decision that is unreviewable ....”); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999) (holding that 8 C.F.R. § 1003.2(a) gives the BIA “non-reviewable discretion” to' decline to reopen deportation proceedings). We hereby join our sister circuits in holding that a decision of the BIA whether to reopen a case sua sponte under 8 C.F.R. § 1003.2(a) is entirely discretionary and therefore beyond our review — in other words, we lack jurisdiction to review the BIA’s decision not to reopen Ali’s immigration proceedings sua sponte. H? Hi H: * * * We have considered all of petitioners’ arguments and found each of them to be without merit. Accordingly, we Deny those parts of Ali’s petition for review that pertain to the BIA’s denial of Ali’s motion to reopen and Dismiss for lack of jurisdiction Ali’s challenge to the BIA’s discretionary decision not to exercise its authority to reopen proceedings sua sponte. . 8 C.F.R. § 1003.2(a) provides, in relevant part, that The [BIA] may at any time reopen or reconsider- on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by any party affected by the decision, must be in the form of a" }, { "docid": "5172669", "title": "", "text": "reopen accordingly.” Lindor’s argument is unavailing. We recently clarified that Haddad’s holding was “limited to whether Haddad’s changed personal circumstances ... supported a motion to reopen” and observed that other courts have characterized Haddad’s other discussion as dicta. See Zhang, 543 F.3d at 857. We “conclude[d] that the BIA reasonably interpreted §§ 1158(a)(2)(D) and 1229a(e)(7)(C)(ii) of Title 8 as requiring an alien subject to a final order of removal for 90 days or more to make a successful motion to reopen her proceedings prior to consideration of a successive application for asylum.” Id. at 859. Because Lindor has not yet made a successful motion to reopen, his argument here fails. Lindor also argues that the BIA erred when it determined that his August 2007 motion to reopen was barred by the numerical limitation on such motions because he only filed one motion to reopen with the BIA itself. This argument fails. See 8 C.F.R. § 1003.2(c)(2) (stating that “an alien may file only one motion to reopen ... (whether before the Board or the Immigration Judge)”) (emphasis added); see also Tapia-Martinez, 482 F.3d at 420-22 & n. 4 (finding a second motion to reopen to be numerically barred under § 1003.2(c)(2) where petitioner filed her first motion to reopen with the Immigration Judge, which denied the motion and which the BIA affirmed, and filed her second motion to reopen with the BIA). Finally,. Lindor argues that the BIA should have reopened his case sua sponte under 8 C.F.R. § 1003.2(a), which provides that the BIA “may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” We have previously held that we “lack[] jurisdiction to find that the BIA abused its discretion by failing to exercise its discretionary authority to reopen [the petitioner]’s proceedings.... The decision whether to invoke sua sponte authority is committed to the unfettered discretion of the BIA ... [and is] not subject to judicial review.” Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004) (citations and quotation marks omitted). Thus, we dismiss the petition for lack of" }, { "docid": "22720514", "title": "", "text": "We have held that an applicant who is specifically targeted for persecution has a well-founded fear. See, e.g., Melkonian, 320 F.3d at 1068-69. Finally, Malty has introduced evidence regarding recent, widespread persecution of Coptic Christians that supports his claim. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir.2003) (explaining that the level of individualized targeting that a petitioner must show is decreased when he is a member of a mistreated group). A well-founded fear does not require proof that persecution is more likely than not; even a ten percent chance of persecution may establish a well-founded fear. INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); see also Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). There is no question that Malty has demonstrated a reasonable likelihood of meeting this standard. Therefore, Malty has stated a pri-ma facie case for asylum based on changed circumstances in his country of nationality. III. Conclusion We grant the petition for review and remand to the BIA with instructions to reopen. REVERSED and REMANDED. . The BIA declined to exercise its discretionary authority to grant the motion sua sponte. We do “not have jurisdiction to review the BIA's refusal to reopen deportation proceedings sua sponte.\" Ekimian v. INS, 303 F.3d 1153, 1160 (9th Cir.2002). Although the BIA discusses some of its reasons for its decision not to reopen when explaining its refusal to grant a sua sponte motion, we treat all of its reasons as equally pertinent to its denial of Malty’s motion to reopen, which it denied essentially on the ground that he failed to demonstrate changed country circumstances. . Although the statute and regulation refer to “affidavits,” we have treated affidavits and declarations interchangeably for purposes of motions to reopen, see, e.g., Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003); Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir.2002), as well for purposes of BIA proceedings generally. See, e.g., Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1118 (9th Cir.2004); Vera-Villegas v. INS, 330 F.3d 1222, 1226 (9th Cir.2003); Gafoor v. INS, 231 F.3d 645, 654" }, { "docid": "11174943", "title": "", "text": "BIA’s fact-findings for substantial evidence, and we review its legal determinations, as well as any constitutional challenges, de nemo. Ntangsi v. Gonzales, 475 F.3d 1007, 1011-12 (8th Cir.2007). Where the BIA adopts the IJ’s reasoning, we review the IJ’s decision as well. See Bhosale v. Mukasey, 549 F.3d 732, 735 (8th Cir.2008). The IJ determined that if Banat’s story had been credible, he would have found that Banat suffered past persecution and would have been entitled to relief. (Pet’r’s Add. at 29.) The IJ ultimately discredited Banat’s testimony, however, relying on the State Department letter’s determination that the handwritten PFLP letter had been fabricated, coupled with the lack of any other corroboration for Banat’s story. Adverse credibility determinations, like other findings of fact, must be supported by substantial evidence. See Mamana v. Gonzales, 436 F.3d 966, 968 (8th Cir.2006). “An IJ making a[n adverse] credibility determination must give reasons that are specific enough that a reviewing court can appreciate the reasoning behind the decision and cogent enough that a reasonable adjudicator would not be compelled to reach the contrary conclusion.” Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir.2008) (internal marks omitted). The BIA affirmed the IJ’s credibility finding based on its conclusion that introduction of the State Department letter did not violate Banat’s right to due process. Banat argues that his due process rights were violated when the IJ relied on the State Department letter to make his adverse credibility determination. Although the Federal Rules of Evidence are not controlling in an immigration proceeding, the Fifth Amendment right to due process places limits on the evidence that may be considered in an immigration hearing. Tamenut v. Ashcroft, 361 F.3d 1060, 1061 (8th Cir.2004). Due process requires that the IJ consider only evidence that is “probative and its admission fundamentally fair.” Tun v. Gonzales, 485 F.3d 1014, 1025-26 (8th Cir.2007) (internal marks omitted). The focus in a due process inquiry is on fairness. “ ‘In the evidentiary context, fairness is closely related to the reliability and trustworthiness of the evidence.’ ” Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003)" }, { "docid": "20471048", "title": "", "text": "a result, this part of the petition is dismissed. Zetino’s due process rights were not violated and substantial evidence supports the BIA’s decision that Zetino did not demonstrate a nexus between the harm he fears and a protected ground. This part of the petition for review is denied. PETITION DISMISSED IN PART, DENIED IN PART. . In his petition for review, Zetino does not challenge the IJ's denial of his application for protection under the United Nations Convention Against Torture. Accordingly, he has waived any challenge to that determination. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260(9th Cir.1996). . We construe Zetino’s motion, filed two weeks after the filing deadline, as solely a motion to accept an untimely brief. An extension of the filing period was factually impossible because the filing period had already lapsed. In its order, the BIA noted its stated policy that a \"request for an extension of time to file a brief must be received at the Board on or before [the] ... due date.” A motion to extend the filing period filed after the filing deadline can only result in the acceptance of an untimely brief. Accordingly, we treat Zetino’s \"Motion to Accept Late Brief and Motion for Extension of Time” as a motion to accept an untimely brief. . Section 1252(a)(2)(B)(ii) has been interpreted to only apply to discretionary decisions the authority for which is granted under statute. See Kucana v. Holder,— U.S. —, 130 S.Ct. 827, 836, — L.Ed.2d — (2010); Spencer Enters., Inc. v. United States, 345 F.3d 683, 689-92 (9th Cir.2003). The authority for the BIA’s decision to reject a late brief is not granted by statute, but rather by regulation. See 8 C.F.R. § 1003.3(c)(1) .The Supreme Court’s decision in Kucana did not overrule Ekimian. In Ekimian, we held we lack jurisdiction to review the Board’s decision not to reopen removal proceedings sua sponte. In Kucana, the Court ”express[ed] no opinion on whether federal courts may review the Board's decision not to reopen removal proceedings sua sponte.” 130 S.Ct. at 839 n.18. Accordingly, Ekimian is still good law. . BIA" }, { "docid": "22179966", "title": "", "text": "abuse its discretion when it concluded that Harchenko had failed to show materially changed conditions in the Ukraine such that his failure to file a timely motion to reopen could be excused. Harchenko also contends that the BIA abused its discretion by declining to exercise its sua sponte authority to reopen proceedings under 8 C.F.R. § 3.2(a). The BIA noted that its discretionary power to reopen under § 3.2(a) is limited to “exceptional situations” and concluded that Har-chenko’s desire to seek an adjustment of status was not exceptional. The government contends that this court lacks jurisdiction to find that the BIA abused its discretion by failing to exercise its discretionary authority to reopen Harchenko’s proceedings. We agree. The decision whether to invoke sua sponte authority is committed to the unfettered discretion of the BIA. See 8 C.F.R. § 3.2(a). “There fore, the very nature of the claim renders it not subject to judicial review.” Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999). See also Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1154 (9th Cir.2002); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). As other courts have noted, the discretion permitted by § 3.2(a) is “so wide that even if the party moving has made out a prima facie case for relief, the BIA can deny a motion to reopen a deportation order. No language in the provision requires the BIA to reopen a deportation proceeding under any set of particular circumstances. Instead, the provision merely provides the BIA the discretion to reopen immigration proceedings as it sees fit.” Anin, 188 F.3d at 1279 (citations and quotation omitted). This reasoning is based on the Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), in which the court held that “review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Section 3.2(a) provides no standard by which to judge the agency’s exercise of discretion." }, { "docid": "22698326", "title": "", "text": "provides that the BIA “may” reopen on its own motion, but it “provides no guidance as to the BIA’s appropriate course of action, sets forth no factors ..., places no constraints on the BIA’s discretion, and specifies no standards for a court to use to cabin the BIA’s discretion.” Tamenut, 521 F.3d at 1004. While the BIA has indicated it will exercise its power to reopen sua sponte in the presence of exceptional circumstances, “the mere fact that the BIA has acknowledged the existence of its authority to reopen sua sponte in what it deems to be ‘exceptional situations’ is not sufficient to establish a meaningful standard for judging whether the BIA is required to reopen proceedings on its own motion.” Tame-nut, 521 F.3d at 1005 (emphasis in original). Because there are no meaningful standards by which to judge the BIA’s exercise of its discretion, we find that we lack jurisdiction to review its refusal to sua sponte reopen Mosere’s case. III. For the foregoing reasons, we deny the petition for review in part and dismiss it in part. PETITION DENIED IN PART AND DISMISSED IN PART . Sierra Leone was embroiled in a civil war from 1991-2002. By mid-1997, approximately one-third of Sierra Leone's population was displaced within the country. . Mosere claims to suffer from both sickle cell anemia and a heart condition that causes her pain. .Temporary Protected Status is a temporary immigration status granted to citizens of designated countries who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. 8 U.S.C.A. § 1254a (West 2005). . Mosere also argues that the BIA erroneously concluded that she was time-barred under 8 U.S.C.A. § 1229c(d) (West 2005 & Supp. 2008). Because we can affirm the BIA’s decision based on its alternative holding that Mos-ere’s motion was untimely, we do not address this argument." }, { "docid": "22138282", "title": "", "text": "Movement for the Liberation of Angola— MPLA”), invaded Cabinda, overthrew the provisional government that had been formed by FLEC, and annexed the region to Angola. Cabinda is ethnically and linguistically dis tinct from the rest of Angola and geographically disconnected from the country. . The first paragraph of this addendum reads: My original affidavit ... contains a mistake. ... [I]t refers to an incident in 1993 where I was imprisoned for a period of five days.... [I]t states that I was accused of taking part in the Bakongo Revolt of 1992, and that I had been tortured while in custody and sustained injuries that required me to be hospitalized for one month. This is incorrect. Addendum to Respondent’s Affidavit at 1. . Alternatively, the IJ found that even if Ki-binda had met his burden of establishing statutory eligibility for asylum, asylum should be denied in the exercise of discretion because “respondent has not met his burden of proving by a preponderance of the evidence that he merits a favorable exercise of discretion because he has not proven that he could not acquire legal immigration status in Brazil.” . We review the BIA's refusal to reopen the record to include supplemental documents and remand to the IJ for abuse of discretion. Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (2003). The BIA found that Kibinda had failed to adequately explain why these documents, which predated his hearing before the IJ, were previously unavailable. Furthermore, the BIA found that these documents were inconsistent with Kibinda's own testimony. Therefore, the BIA did not abuse its discretion in refusing to supplement the record and remand for further proceedings. . An alien's testimony by itself, if credible, can satisfy the burden of establishing a claim for relief by objective evidence. See 8 C.F.R. § 208.13(a); Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003). Here, Kibinda's testimony did not satisfy that burden. . Counsel for Kibinda argues \"it is reasonable to conclude that the harm [Kibinda] suffered was motivated at least, in part, by an actual or imputed ground establishing the nexus for a finding of" }, { "docid": "22864679", "title": "", "text": "narrow congressionally prescribed jurisdictional boundaries, we decline to read Abudu to do so. . Our published decisions applying abuse of discretion review to denials of motions to reopen (or remand) under Abudu’s second and third grounds indirectly support the approach we adopt today. In no such case have we applied abuse of discretion review to the BIA’s underlying factual determinations, for no such case has required us to review strictly factual determinations. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 409-11 (evaluating mixed question of- law and fact for abuse of discretion); Lu v. Ashcroft, 259 F.3d 127, 134-35 (3d Cir.2001) (same). See also Doherty, 502 U.S. at 325-29, 112 S.Ct. 719 (evaluating mixed question of law and fact for abuse of discretion); Abudu, 485 U.S. at 112, 108 S.Ct. 904 (same). . As we discuss at note 22 below, in addition to contending that the IJ's decision lacked substantial evidence, Korytnyuk also claims the IJ's conduct violated his due process rights. See Pet. Br. at 27 (“Throughout the hearing, [the] IJ unfairly reprimanded both Mr. Korytnyuk and Mr. Korytnyuk’s attorney, demonstrating anger towards them and a predisposition towards denial of the case, thus[] not permitting Mr. Korytnyuk to be heard in a meaningful manner and violating his right to due process.”). The government contends that Korytnyuk waived this argument by not raising it earlier in any forum. Korytnyuk replies that he effectively preserved the issue under Abdulrahman v. Ashcroft, 330 F.3d 587, 595 n. 5 (3d Cir.2003). We will not reach this question, as we ultimately remand to the BIA for an abuse of discretion. We do find such exchanges troubling, however. See note 4, above. Indeed, while we \"recognize that assignment of an [IJ] is within the province of the Attorney General,” if on remand an IJ's services are needed, we believe \"the parties would be far better served by the assignment to those proceedings of a different IJ.” Paramasamy v. Ashcroft, 295 F.3d 1047, 1055 n. 4 (9th Cir.2002) (quoting Garrovillas v. INS, 156 F.3d 1010, 1016 n. 4 (9th Cir.1998) (remanding order based on adverse credibility finding" }, { "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": "22698325", "title": "", "text": "next alleges that the BIA erred by declining to exercise its discretionary power to sua sponte reopen Mos-ere’s asylum application for extraordinary circumstances. Every circuit that has considered this issue has determined that the BIA’s decision whether to exercise its power to reopen sua sponte is unreviewable because there are no meaningful standards for courts to apply in review. Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir. 2008) (en banc) (per curiam); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). We have reached the same decision in a prior unpublished opinion, Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam), and we reaffirm that holding today. Section 1003.2(a) provides that the BIA “may” reopen on its own motion, but it “provides no guidance as to the BIA’s appropriate course of action, sets forth no factors ..., places no constraints on the BIA’s discretion, and specifies no standards for a court to use to cabin the BIA’s discretion.” Tamenut, 521 F.3d at 1004. While the BIA has indicated it will exercise its power to reopen sua sponte in the presence of exceptional circumstances, “the mere fact that the BIA has acknowledged the existence of its authority to reopen sua sponte in what it deems to be ‘exceptional situations’ is not sufficient to establish a meaningful standard for judging whether the BIA is required to reopen proceedings on its own motion.” Tame-nut, 521 F.3d at 1005 (emphasis in original). Because there are no meaningful standards by which to judge the BIA’s exercise of its discretion, we find that we lack jurisdiction to review its refusal to sua sponte reopen Mosere’s case. III. For the foregoing reasons, we deny the petition for review in part and" }, { "docid": "22376115", "title": "", "text": "to due process. The IJ’s decision to deny relief must therefore be vacated, according to Anim. For the reasons that follow, we agree. A. The Federal Rules of Evidence do not apply in immigration proceedings, and evidentiary determinations are limited only by due process considerations. Alexandrov v. Gonzales, 442 F.3d 395, 404 (6th Cir.2006); see Rusu v. U.S. INS, 296 F.3d 316, 320, 321 n. 8 (4th Cir.2002). To succeed on a due process claim in an asylum or deportation proceeding, the alien must establish two closely linked elements: (1) that a defect in the proceeding rendered it fundamentally unfair and (2) that the defect prejudiced the outcome of the case. See Rusu, 296 F.3d at 320-22, 324. These two elements are aimed at the same concern — the fairness of the proceeding. The first element requires consideration of whether, prospectively, a particular defect could undermine a proceeding. When the admission of evidence is challenged, this element requires that “ ‘the evidence is probative and its use is fundamentally fair.’ ” Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003) (quoting Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir.1990)). In this context “ ‘fairness is closely related to the reliability and trustworthiness of the evidence.’ ” Ezeagwuna, 325 F.3d at 405 (quoting Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir.1996)). The second element, on the other hand, requires consideration of whether the defect, in retrospect in a specific case, was “ ‘likely to impact the results of the proceedings.’ ” Rusu, 296 F.3d at 320-21 (quoting Jacinto v. INS, 208 F.3d 725, 728 (9th Cir.2000)). Thus, consideration of the challenged evidence would have to prejudice the IJ’s final decision in the petitioner’s case before she could succeed on her due process claim. B. Anim argues that consideration of the Bunton letter was fundamentally unfair. We therefore review the letter to determine whether it contains sufficient indicia of reliability and trustworthiness to support its use. See Alexandrov, 442 F.3d 395 (holding that consideration of an overseas fraud investigation report violated due process because the report was insufficiently reliable); Ezeagwuna," }, { "docid": "22663334", "title": "", "text": "it had rendered a decision,’ ” Pet’r’s Br. at 35 n. 10 (emphasis added), he insists that “the Board should nonetheless have exercised such authority here as the Petitioner certainly presents compelling and exceptional circumstances upon which to act,” id. at 35. It is a matter of first impression in this Circuit whether we have jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen removal proceedings. According to the relevant provision in the Code of Federal Regula tions, the BIA “may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.... The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of [8 C.F.R. § 1003.2]. The Board has discretion to deny a motion to reopen even if the moving party has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). Several other circuits have concluded that the BIA’s failure to reopen removal proceedings sua sponte is a discretionary decision that cannot be reviewed by the Courts of Appeals. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004) (holding that because the “Code of Federal Regulations suggests that no meaningful standard exists against which to judge an IJ’s decision to exercise sua sponte authority to reopen deportation proceedings,” such decisions are committed to the discretion of the BIA and therefore unreviewable); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003) (same); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003) (same); Ekimian v. INS, 303 F.3d 1153, 1157-58 (9th Cir.2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999) (same); see also Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003) (“[F]ailure to reopen sua sponte is a discretionary decision that is unreviewable ....”); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999) (holding that 8 C.F.R. § 1003.2(a) gives the BIA “non-reviewable discretion” to' decline to reopen deportation proceedings). We hereby join our sister circuits in holding that a decision of the BIA whether to reopen" }, { "docid": "22155099", "title": "", "text": "persecuted on the basis of his political opinion. Moreover, the “1997 State Department Profile” provides substantial evidence in support of the conclusion that the country conditions have changed in Bangladesh, specifically noting that Jatiyo Party members are able to “defend themselves in court actions and have the same judicial rights as other Bangladeshis.” A.R. at 257. Having concluded substantial evidence supports the BIA’s denial of asylum, we conclude that withholding of removal was also properly denied. “The standard for withholding of removal is higher than, albeit similar to, the standard for asylum.... If [a petitioner] is unable to satisfy the standard for asylum, he necessarily fails to meet the standard for withholding of removal under [the INA].” Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003). III. In the alternative, Shardar maintains that the fact that he has established that he was severely beaten in prison and the documentary evidence in the record that shows this is a common practice in Bangladesh prisons should be sufficient to justify, at the very least, a grant of withholding of removal under the CAT. On June 23, 1999, Shardar filed a motion to remand, requesting that the BIA remand his case to the IJ for consideration under the CAT, which having been passed in 1999 was not effective when the IJ rendered his decision in July 1998. We conclude that the IJ properly denied the motion for reconsideration. “We review the BIA’s denial of the motion to reopen [or remand ] for abuse of discretion, ‘mindful of the “broad” deference that the Supreme Court would have us afford.’ ” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003) (quoting Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001) (citing I.N.S. v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988))). “Motions to reopen implicate important finality concerns even when they seek to raise an underlying claim for relief, such as relief under the Convention Against Torture, that is not committed to the Attorney General’s discretion.” Sevoian v. Ashcroft, 290 F.3d 166, 172 (3d Cir.2002). We conclude that the BIA did" }, { "docid": "14850730", "title": "", "text": "(1989)); see also Patel v. Atty. Gen., 334 F.3d 1259, 1262 (11th Cir.2003) (dismissing petition where petitioner’s prior conviction was subsequently found by state court to not constitute a deportable defense, saying “we perceive no theory under which the subsequent action of a state court could confer jurisdiction upon us that would not otherwise exist”). Thus, we cannot say that the BIA’s decision was arbitrary and capricious. See Ovalles, 577 F.3d at 296-98. Next, the IJ and BIA found that “when there is an apparent conflict between a specific provision and a more general one, the more specific one governs.” Memorandum & Dec. at 2, Admin. R. at 54; see also Order at 1, Admin. R. at 2. As we stated in Shawnee Tribe, “[i]t is a fundamental canon of statutory construction that, when there is an apparent conflict between a specific provision and a more general one, the more specific one governs.” 423 F.3d at 1213 (further quotation omitted). That general rule has been specifically applied to the regulations at issue here. See Navarro-Miranda, 330 F.3d at 676 (“[T]he BIA’s reasoning that the prohibition on motions to reopen stated in § 3.2(d) [post-departure bar] overrides its § 3.2(a) power to reopen on its own motion is a reasonable interpretation of these two regulations.”); see also Mansour v. Gonzales, 470 F.3d 1194, 1198 (6th Cir.2006). Furthermore, we have held that “we do not have jurisdiction to consider petitioner’s claim that the [Board] should have sua sponte reopened the proceedings under 8 C.F.R. § 1003.2(a) because there are no standards by which to judge the agency’s exercise of discretion.” Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir.2004). Thus, we perceive no error in the BIA’s decision that, notwithstanding its sua sponte authority to consider motions to reopen, it declined to reopen Rosillo-Puga’s proceedings in this case. See Ovalles, 577 F.3d at 295-98. Finally, Rosillo-Puga argues that the BIA’s application of the regulatory bar to his case violated his due process rights. We disagree. “It is well-established that aliens are entitled to due process in deportation proceedings.” Penar-Muriel, 489 F.3d at" }, { "docid": "22376116", "title": "", "text": "F.3d 396, 405 (3d Cir.2003) (quoting Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir.1990)). In this context “ ‘fairness is closely related to the reliability and trustworthiness of the evidence.’ ” Ezeagwuna, 325 F.3d at 405 (quoting Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir.1996)). The second element, on the other hand, requires consideration of whether the defect, in retrospect in a specific case, was “ ‘likely to impact the results of the proceedings.’ ” Rusu, 296 F.3d at 320-21 (quoting Jacinto v. INS, 208 F.3d 725, 728 (9th Cir.2000)). Thus, consideration of the challenged evidence would have to prejudice the IJ’s final decision in the petitioner’s case before she could succeed on her due process claim. B. Anim argues that consideration of the Bunton letter was fundamentally unfair. We therefore review the letter to determine whether it contains sufficient indicia of reliability and trustworthiness to support its use. See Alexandrov, 442 F.3d 395 (holding that consideration of an overseas fraud investigation report violated due process because the report was insufficiently reliable); Ezeagwuna, 325 F.3d at 405-08 (same); see also Lin, 459 F.3d at 269 (holding that an overseas fraud investigation report was insufficiently reliable “to satisfy the substantial evidence requirement”). We conclude that the Bun-ton letter contains insufficient indicia of reliability and, as a result, its use was fundamentally unfair. First, the Bunton letter (or report) is comprised entirely of multiple hearsay statements. Although hearsay is admissible in immigration proceedings, “[hjighly unreliable hearsay might raise due process problems.” Alexandrov, 442 F.3d at 405 (quoting Yongo v. INS, 355 F.3d 27, 31 (1st Cir.2004)). Multiple hearsay, where the declarant is steps removed from the original speaker, is particularly problematic because the declarant in all likelihood has been unable to evaluate the trustworthiness of the original speaker. See Ezeagwuna, 325 F.3d at 406. Because officials of certain foreign governments “have powerful incentives to be less than candid on the subject of their government’s persecution of political dissidents,” Lin, 459 F.3d at 269-70, concerns about a report’s reliability are amplified when the “report was prepared with the assistance of someone" }, { "docid": "22669184", "title": "", "text": "relief under the Conven tion Against Torture. The BIA affirmed the IJ’s decision, dismissed Cano’s appeal, and denied his motion to reopen. This petition followed. STANDARD OF REVIEW We review the BIA’s denial of motions to reopen or to reconsider for abuse of discretion, “although[de novo] review applies to the BIA’s determination of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002); see also Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (motion to reopen); Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (motion to reconsider). “We review de novo claims of due process violations in deportation proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000) (citation omitted). Review is limited to the BIA’s decision because the BIA reviewed the IJ’s decision de novo. Agyeman v. INS, 296 F.3d 871, 876 (9th Cir.2002). DISCUSSION I Due Process Cano argues that the BIA abused its discretion by failing to address his claim that the IJ denied him a meaningful opportunity to present his ease. The BIA concluded the IJ did not err in denying Cano’s motion to reconsider because Cano chose to proceed without an attorney, was presented with options regarding whether to present his asylum application, and voluntarily elected to withdraw his application. We will not disturb the BIA’s decision unless it acted “arbitrarily, irrationally, or contrary to law.” Singh, 213 F.3d at 1052. Here, the IJ did not provide Cano “a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf,” as required by the Fifth Amendment’s guarantee of due process in deportation proceedings. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). Complicating review in this case is the IJ’s decision to go off the record to tell Cano before he had the opportunity to present oral testimony or documents in support of his application that he had no basis for an asylum claim. We know only that at some time during the recess the IJ explained" } ]

[ { "docid": "3308105", "title": "", "text": "Defendants’ motion to dismiss into one for summary judgment. II. Business Judgment Rule Defendants argue that Plaintiffs claims are foreclosed by operation of the business judgment rule because the claims challenge the decisions of RPO’s directors. New York law governs this action since RPO is a New York corporation. See Hanson Trust PLC v. ML SCM Acquisition, Inc., 781 F.2d 264, 273 (2d Cir.1986). New York’s business judgment rule creates a presumption that a corporation’s directors act in good faith and in the best interests of the corporation. See Auerbach v. Bennett, 47 N.Y.2d 619, 629, 419 N.Y.S.2d 920, 393 N.E.2d 994 (1979); see also Hanson Trust, 781 F.2d at 273 (“[A] presumption of propriety inures to the benefit of directors.”); Banque National de Paris S.A. Dublin Branch v. Ins. Co. of North Am., 896 F.Supp. 163, 165 (S.D.N.Y.1995) (“[IJnformed business judgments by boards are presumed appropriate absent a showing of self-interest or fraud.”). The rule is designed to “bar[] judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.” Auerbach, 47 N.Y.2d at 629, 419 N.Y.S.2d 920, 393 N.E.2d 994; see Pollitz v. Wabash R.R. Co., 100 N.E. 721, 207 N.Y. 113, 124 (1912) (“[T]he exercise of [directors’ powers] for the common and general interests of the corporation may not be questioned, although the results show that what they did was unwise or inexpedient.”). When the rule applies to a board’s business decision, a court will defer to the directors unless “no person of ordinary sound business judgment would say that the corporation received fair benefit.” Aronoff v. Albanese, 85 A.D.2d 3, 446 N.Y.S.2d 368, 371 (2d Dep’t 1982). In contrast, when circumstances remove a corporate decision from the scope of the rule, “the burden falls upon the board to demonstrate that its actions were reasonable and/or fair.” In re Croton River Club, Inc., 52 F.3d 41, 44 (2d Cir.1995). The business judgment rule will not protect a decision that was the product of fraud, self-dealing or bad faith. Auerbach, 47 N.Y.2d" } ]

[ { "docid": "3470232", "title": "", "text": "that this court believes would support a cause of action for breach of fiduciary duties under Tennessee law. Deepening Insolvency Deepening insolvency was first recognized as a theory for recovery in actions for breach of fiduciary duty alleging that officers or directors deepened the insolvency of the corporation and reduced or eliminated any return for creditors. See generally Deepening Insolvency, 23-4 AM. Bankr. Inst. J. at 34 & n. 2 (citing Smith v. Arthur Andersen, 175 F.Supp.2d 1180 (D.Ariz.2001)). Its origin has been traced to Bloor v. Dansker (In re Investors Funding Corp. of New York Securities Litigation), 523 F.Supp. 533 (S.D.N.Y.1980). Kittay v. Atlantic Bank of New York (In re Global Serv. Group LLC), 316 B.R. 451, 456 (Bankr.S.D.N.Y.2004). “[T]he deepening insolvency theory of liability holds that there are times when a defendant’s conduct, either fraudulently or even negligently, prolongs the life of a corporation, thereby increasing the corporation’s debt and exposure to creditors.” Deepening Insolvency, 23-4 Am. BaNkr. Inst. J. at 34. The action has morphed, both in form — from a breach of statutory duty claim to a form of common law tort liability — and in scope — now reaching lawyers, accountants, bankers and other financial and insolvency professionals. See Id. at 34. (citing cases). As recounted by the bankruptcy court in In re Global Service Group LLC: Since Investors Funding, several courts have accepted the theory that an insolvent corporation suffers a distinct and compensable injury when it continues to operate and incur more debt. Some have treated “deepening insolvency” as an independent cause of action. Official Comm. of Unsecured Creditors v. R.F. Lafferty & Co., 267 F.3d 340, 349-52 (3d Cir.2001)(construing Pennsylvania law); Official Comm. of Unsecured Creditors v. Credit Suisse First Boston (In re Exide Techs., Inc.), 299 B.R. 732, 750-52 (Bankr.D.Del.2003) (construing Delaware law). Other courts have viewed it as a theory of damages, often raised in response to the defense that increased debt injured the creditors, but did not harm (and actually helped) the corporation. Schacht [v. Brown], 711 F.2d [1343] at 1350 [(7th Cir.1983)]; Hannover Corp. of America v. Beckner," }, { "docid": "9883975", "title": "", "text": "the Guefon Declaration and the Klepper Declaration1 and is integral to the First and Second Claims. In addition, the Independent Directors contend that I should take judicial notice of the Exculpation Provision and dismiss the Complaint based on its effect. The Exculpation Provision, discussed in more detail below, limits the \"liability of Ampal’s directors to the “fullest extent permitted by law,” including section 402(b) of the Business Corporation Law.- N.Y.'Bus. Corp. Law § 402(b) (McKinney 2003). Under Rule 201(b) of the Federal Rules of Evidence, a court may take judicial notice of an adjudicative fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Furthermore, the Court “must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(e);- In New York, certificates of incorporation are filed with the New York Department of State and are public records. N.Y. Bus. Corp. Law § 402(a); Int’l Painters and Allied Trades Indus. Pension Fund v. Cantor Fitzgerald, L.P., 41 Misc.3d 770, 972 N.Y.S.2d 469, 474 n. 3 (N.Y.Sup.Ct.2013); 95 Lorimer, LLC v. Ins. Co. of State of Pa., 6 Misc.3d 500, 789 N.Y.S.2d 833, 838 (N.Y.Sup.Ct.2004); Komow v. Simplex Cloth-Cutting Mach. Co., 109 Misc. 358, 179 N.Y.S. 682, 684 (N.Y.Sup.Ct.1919). Hence, their contents are readily ascertainable. It is not surprising, therefore, that New York federal courts routinely take judicial notice of exculpation provisions in certificates of incorporation on motions to dismiss. See, e.g., John Swann Holding Corp. v. Simmons, 62 F.Supp.3d 304, 309 (S.D.N.Y.2014); Steinberg v. Dimon, No. 14 Civ. 688, 2014 WL 3512848, at *3 (S.D.N.Y. July 16, 2014); Staehr v. Mack, No. 07 Civ. 10368, 2011 WL 1330856, at *6-8 (S.D.N.Y. Mar. 31, 2011); La. Mun. Police Emps. Ret. Sys. v. Blankfein, 08 Civ. 7605, 2009 WL 1422868, at *7-8 (S.D.N.Y. May 19, 2009); Ferre v. McGrath, No. 06 Civ. 1684, 2007 WL 1180650, at *8 (S.D.N.Y. Feb. 16, 2007); O’Toole v. McTaggart (In re Trinsum Grp.), 466 B.R. 596, 618, 620-21 (Bankr.S.D.N.Y.2012). The Trustee’s contrary" }, { "docid": "9883982", "title": "", "text": "where the fiduciary is motivated by an actual intent to do harm, id. at 64, or a conscious disregard of one’s fiduciary duties involving “misconduct that is more culpable than simple inattention or failure to be informed of all facts material to the decision.” Id. at 66. The Court quoted with approval the lower court’s examples of bad faith: A failure to act in good faith may be shown, for instance, where the fiduciary intentionally acts with a purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties. Id. at 67; accord Geltzer v. Bay Harbour Mgmt. LC (In re BH S & B Holdings LLC), 807 F.Supp.2d 199, 200 n. 4 (S.D.N.Y.2011). The law of New York, which' governs the Trustee’s claims, may impose even stricter requirements for pleading and proving bad faith. In Stern v. Gen. Elec. Co., 924 F.2d 472 (2d Cir.1991), the'plaintiff brought a derivative action alleging,, inter alia, that the defendant directors had breached their fiduciary duties and wasted corporate assets by allowing GE to fund a political support committee. The District Court dismissed these counts on preemption grounds. . The Court of Appeals reversed and remanded, concluding that the claims were not pre-empted, id. at 476, .and clarified the pleading requirements the plaintiff would have to meet. Discussing New York’s business judgment rule, t;he Court explained that “the actions of corporate directors, are subject to judicial review only upon a showing of fraud or bad faith,” Id. (citing Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994, 1000 (1979)). To survive a motion to dismiss, the complaint must allege that the directors acted fraudulently or in bad faith, and allegations of waste, standing alone, are not enough.- Id. Although allegations of bad.faith need not be supported by particular factual statements, id. at 477, the pleader must do more than add the words “bad" }, { "docid": "9884001", "title": "", "text": "19, 26 (1984)). “Although corporate officers may not owe fiduciary duties to.a corporation regarding aspects of the management of the corporation that are not within their responsibility or are within the exclusive province of the board, non-director officers may be held liable for breach of fiduciary duty ‘to- the extent that they have discretionary authority over, and the power to prevent, the complained of transactions,’ in which case they will be held to the same standards as a director.” Official Committee of Unsecured Creditors of Verestar, Inc. v. Am. Tower Corp. (In re Verestar, Inc.), 343 B.R. 444, 474 (Bankr.S.D.N.Y.2006) (interpreting Delaware law); accord Pereira, 294 B.R. at 520; see also A. Gilchrist Sparks, III & Lawrence A. Hamermesh, Common Law Duties of Non-Director Corporate Officers, 48 Bus Law 215, 218 (1992) (noting that non-director officers with -discretionary authority are held to the same standards of conduct as directors). • • • Although Eluz cannot invoke the Exculpation Provision because she is sued in her capacity as an officer, she may be shielded by the business judgment rule, which bars judicial inquiiy into actions by corporate fiduciaries “taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.” Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994, 1000 (1979), accord Patrick v. Allen, 355 F.Supp.2d 704, 710 (S.D.N.Y.2005). A complaint charging a breach of fiduciary duty must “plead around” the business judgment rule. To survive a motion to dismiss, the complaint must allege that the director or officer acted fraudulently or in,bad faith, Stern, 924 F.2d at 477; Lippe v. Bairnco Corp., 230 B.R. 906, 916-17 (S.D.N.Y.1999); Kittay v. Atlantic Bank of New York (In re Global Serv. Grp., LLC), 316 B.R. 451, 461 (Bankr.S.D.N.Y.2004), lacked disinterested independence, Patrick v. Allen, 355 F.Supp.2d at 711, or acted without due care or reasonable diligence. Geltzer v. Altman (In re 1st Rochdale Coop. Group, Ltd.), No. 07 Civ. 7852(DC), 2008 WL 170410, at *3 (S.D.N.Y. Jan. 17, 2008). If it.does, the complaint cannot be dismissed solely upon the application of" }, { "docid": "9883983", "title": "", "text": "Gen. Elec. Co., 924 F.2d 472 (2d Cir.1991), the'plaintiff brought a derivative action alleging,, inter alia, that the defendant directors had breached their fiduciary duties and wasted corporate assets by allowing GE to fund a political support committee. The District Court dismissed these counts on preemption grounds. . The Court of Appeals reversed and remanded, concluding that the claims were not pre-empted, id. at 476, .and clarified the pleading requirements the plaintiff would have to meet. Discussing New York’s business judgment rule, t;he Court explained that “the actions of corporate directors, are subject to judicial review only upon a showing of fraud or bad faith,” Id. (citing Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994, 1000 (1979)). To survive a motion to dismiss, the complaint must allege that the directors acted fraudulently or in bad faith, and allegations of waste, standing alone, are not enough.- Id. Although allegations of bad.faith need not be supported by particular factual statements, id. at 477, the pleader must do more than add the words “bad faith” to the complaint: ’ We note, however, that to survive a future motion to dismiss, Stern will have to do more than-add the words “bad faith” to the complaint. Rather, if he intends to amend the complaint to allege that the Directors’- actions were motivated by an improper purpose, he must state what that purpose was, and why it was improper, in terms clear enough to provide notice to appellees of the nature of the claim and the grounds on which relief is sought. See Fed.R.Civ.P. 8(a). Likewise,.he-must make clear why .the -Directors’ actions constituted waste, and why their expenditures were “unreasonable and excessive.” Id. at 478 n. 8; accord Stoner v. Walsh, 772 F.Supp. 790, 806-07 (S.D.N.Y.1991) (“Stem makes clear that conclusory allegations of ‘bad faith’ are insufficient to survive a motion to dismiss. Rather, the complaint must state some set of facts from which it may be inferred that the directors’ actions might have been motivated by an improper purpose.”). By analogy, the same rules for pleading bad faith should apply to" }, { "docid": "19013147", "title": "", "text": "Inc., 660 F.3d 131, 138 (2d Cir.2011) (citing Barrett v. Freifeld, 64 A.D.3d 736, 883 N.Y.S.2d 305, 308 (2d Dep't 2009)). . Peacock v. Herald Square Loft Corp., 67 A.D.3d 442, 889 N.Y.S.2d 22, 23 (1st Dep’t 2009) (quoting Hyman v. NYSE, Inc., 46 A.D.3d 335, 848 N.Y.S.2d 51, 53 (1st Dep’t 2007)). Accord Gates v. BEA Assocs., No. 88 Civ. 6522, 1990 WL 180137, at *6 (S.D.N.Y. Nov. 13, 1990). . Hyman, 848 N.Y.S.2d at 53. . N.Y. Bus. Corp. Law § 717(a). . Hanson Trust PLC v. ML SCM Acquisition, Inc., 781 F.2d 264, 273 (2d Cir.1986). Accord RSL Commc'ns PLC ex rel. Jervis v. Bildirici, No. 04 Civ. 5217, 2006 WL 2689869, at *4 (S.D.N.Y. Sept. 14, 2006). . Tyco Intern. Ltd. v. Walsh, 455 Fed.Appx. 55, 57, n. 2 (2d Cir.2012). . See City of Sterling Heights Police and Fire Ret. Syst. v. Abbey Nat’l, PLC, 423 F.Supp.2d 348, 364 (S.D.N.Y.2006) (stating that under English law corporations do not owe a fiduciary duty to shareholders); Tyco, 455 Fed.Appx. at 57 (\" 'It is well established that ... directors owe the company a fiduciary duty to act bona fide in the company’s interest, and that 'the company' in this context is understood to mean the shareholders' ”) (quoting Miller v. Bain [2002] 1 B.C.L.C 266(Ch.), ¶ 67, 2001 WL 1743253). . International Bus. Machs. Corp. v. Liberty Mut. Ins. Co., 363 F.3d 137, 143 (2d Cir.2004). . Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157, 169 (1st Dep’t 2003). Accord In re Sharp Int’l Corp., 403 F.3d 43, 49 (2d Cir.2005). . Johnson, 660 F.3d at 142 (citing Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir.2004)). . Merrill Lynch & Co. v. Allegheny Energy, Inc., 500 F.3d 171, 186 (2d Cir.2007). . ESPN, Inc. v. Office of the Comm'r of Baseball, 76 F.Supp.2d 383, 392 (S.D.N.Y.1999) (quoting Macfarlane & Assocs. v. Noxell Corp., No. 93 Civ. 5192, 1994 WL 369324, at *4 (S.D.N.Y. July 13, 1994)). . Plaintiffs assert that the court has both general and" }, { "docid": "6204603", "title": "", "text": "in the company’s everyday business is critical to support the [group pleading] presumption.”). The Court concludes that Sapere’s use of the group pleading doctrine is inappropriate for several reasons. First, the Complaint fails to allege facts to suggest that several of the Individual Defendants were sufficiently involved with MF Global and MFGI’s daily affairs. In particular, Sapere makes no showing that the Independent Directors were corporate insiders or involved in MF Global’s day-to-day operations. See Dresner v. Utility.com, Inc., 371 F.Supp.2d 476, 494 (S.D.N.Y.2005) (rejecting use of group pleading doctrine against outside directors absent allegation that directors “acted like corporate insiders”). Second, several of the statements that Sapere alleges to have been fraudulent are not the type of group-published statements subject to the group pleading doctrine. For instance, Sapere relies on statements made on MF Global’s public website and on private, customer-accessible online account displays. (See, e.g., Compl. ¶¶ 13, 14, 39, 63(a), 116, 182, 187.) But “it is far from obvious that senior corporate officers would be involved in drafting text for a corporate website.” American Fin. Int’l Grp.-Asia, L.L.C. v. Bennett, No. 05 Civ. 8988, 2007 WL 1732427, at *11 (S.D.N.Y. June 14, 2007). At its core, Sapere’s theory is that the Individual Defendants are liable for any statement that has any link to MF Global or its subsidiaries. The group pleading doctrine does not extend so far. See Camofi Master LDC v. Riptide Worldwide, Inc., No. 10 Civ. 4020, 2011 WL 1197659, at *6 (S.D.N.Y. Mar. 25, 2011) (noting that group pleading doctrine “is extremely limited in scope” and “is limited to group-published documents”). Third, and most significantly, Sa-pere improperly attempts to group-plead the scienter requirement. “In a case involving multiple defendants, plaintiffs must plead circumstances providing a factual ba sis for scienter for each defendant; guilt by association is impermissible.” In re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677, 695 (2d Cir.2009) (citing Devaney v. Chester, 813 F.2d 566, 568 (2d Cir.1987)); see also In re CRM Holdings, Ltd. Sec. Litig., No. 10 Civ. 975, 2012 WL 1646888, at *30 (S.D.N.Y. May 10, 2012). The" }, { "docid": "2941603", "title": "", "text": "104 S.Ct. 1188, 79 L.Ed.2d 482 (1984) (“The fundamental purpose of reorganization is to prevent a debtor from going into liquidation, with an attendant loss of jobs and possible misuse of economic resources.”); H.R.Rep. No. 95-595, at 220 (1977), U.S.Code Cong. & AdmimNews 1978, 5963, 6179 (“The premise of a business reorganization is that assets that are used for production in the industry for which they are designed are more valuable than those same assets sold for scrap.... It is more economically efficient to reorganize than to liquidate, because it preserves jobs and assets.”). Thus, in contrast to the laws of some foreign jurisdictions, including the United Kingdom, there is no absolute duty under American law to shut down and liquidate an insolvent corporation. The fiduciaries may, consistent with the business judgment rule, continue to operate the corporation’s business. Official Comm. of Unsecured Creditors of RSL COM PRIMECALL, Inc. v. Beckoff (In re RSL COM PRIMECALL, Inc.), Adv. Proc. No. 03-2176, 2003 WL 22989669, at *8 (Bankr.S.D.N.Y. Dec.11, 2003)(“There is no authority that supports [the] position that there is a blanket duty to liquidate upon insolvency, untempered by the business judgment rule.”); Steinberg v. Kendig (In re Ben Franklin Retail Stores, Inc.), 225 B.R. 646, 655 (Bankr.N.D.Ill.1998)(no duty “to liquidate and pay creditors when the corporation is near insolvency, provid ed that in the directors’ informed, good faith judgment there is an alternative”), aff'd in part & rev’d in other part, No. 97 C 7934, 2000 WL 28266 (N.D.Ill.2000). As a result, a manager’s negligent but good faith decision to operate an insolvent business will not subject him to liability for “deepening insolvency.” To overcome the business judgment rule, a complaint must contain specific allegations that the fiduciary acted in bad faith or with fraudulent intent. See Lippe v. Bairnco Corp., 230 B.R. 906, 916— 17 (S.D.N.Y.1999). Although subsequent allegations in the Complaint, discussed below, accuse the Goldmans of self-dealing, the Complaint does not allege that the Insider Defendants prolonged Global’s life to misappropriate the transfers they received. Rather, the First Cause of Action wrongly assumes that prolonging the life" }, { "docid": "9883988", "title": "", "text": "also Trinsum Grp., 466 B.R. at 611 (bad faith required knowing and complete failure to undertake responsibility) (internal quotations omitted). The Trustee’s authorities, all involving Delaware law, do not support the argument that bad faith or “conscious disregard” may be based solely, on inadequate inquiry; instead, the Trustee’s authorities required conscious wrongdoing. See In re JPMorgan Chase & Co. Derivative Litig., No. 12 Civ. 03878, 2014 WL 1297824, at *4 (S.D.N.Y. Mar. 31, 2014) (“Bad faith ‘in the corporate fiduciary duty of loyalty context [includes] (among other things) a failure to act in the face of a known duty to act, which demonstrates a conscious disregard of one’s duties,’ ” and may be shown by a conscious disregard of an obligation to be reasonably informed about the business and its risks or the duty to monitor and oversee the business) (quoting Gatz Properties, LLC v. Auriga Capital Corp., 59 A.3d 1206, 1216-17 (Del.2012) (quotation marks omitted)); Trinsum Grp., 466 B.R. at 618 (“An allegation that a director breached its fiduciary duty by a conscious disregard of such duty must be plead with particularity.”). Furthermore, in those cases cited by the Trustee in'which the court denied a motion to dismiss, the allegations of bad faith were far more particularized than those in the Complaint. See KDW Restructuring & Liquidation Servs. LLC v. Greenfield, 874 F.Supp.2d 213, 226 (S.D.N.Y.2012), (allegations of bad faith sufficient against one director of KDW that voted to continue 'doing business with another eompany-(Jara) in-which he had a personal interest and which was already in default to1 KDW and against other directors that repeatedly transacted with Jara despite its default; their chairman’s conflict of interest and prior warnings regarding the minimal benefits of the transaction); Bridgeport Holdings Inc. Liquidating Trust v. Boyer (In re Bridgeport Holdings, Inc.), 388 B.R. 548, 565 (Bankr.D.Del.2008) (allegations of directors’ breach of duties of loyalty, and . good faith Sufficient where (1) they abdicated responsibility oyer a major sale transaction to the CFO who initiated the transaction 72 hours after he joined the company; (2) there was no. competitive bidding, no retention of" }, { "docid": "11211960", "title": "", "text": "Act of 1934 pursuant to the business judgment of nine directors of a fifteen-member board all named as defendants in the action. Id. at 64. Thus Galef precludes dismissal of plaintiffs’ federal securities and RICO claims pursuant to the business judgment of a five-director voting Board which includes four defendant directors. Although Galef did not resolve the issue of dismissal of state law claims, it seems equally clear that the business judgment rule does not protect the Board’s refusal to press claims for breach of fiduciary duty where plaintiffs seek damages on those claims from four of the five voting Board members. The leading cases under state law formulate standards for judicial review based on the premise that the decision to terminate is made by a special litigation committee rather than by the board itself. See Zapata Corp. v. Maldonado, 430 A.2d 779 (Del.1981); Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994 (1979). The Par Board could have easily achieved a high degree of protection for the decision to terminate by delegating full power to determine the company’s position to the Special Litigation Committee. If a Special Litigation Committee possessing such power and composed of disinterested directors conducts a proper and good faith review of the matters before it and reaches a business judgment that the action is not in the company’s best interest, then the action should be dismissed. See Stein v. Bailey, 531 F.Supp. 684, 693 (S.D.N.Y. 1982) (applying Delaware law); Maldonado v. Flynn, 485 F.Supp. 274, 279 (S.D.N.Y.1980) (applying Delaware law), rev’d in part on other grounds, 671 F.2d 729 (2d Cir.1982); Rosengarten v. International Tel. & Tel. Corp., 466 F.Supp. 817, 822 (S.D.N.Y.1979) (applying New York law). However, a mere advisory role of the Special Litigation Committee fails to bestow sufficient legitimacy on the Board’s decision to warrant deference to the Board by this Court. Moreover, in this Court’s view the Par Special Litigation Committee procedure was flawed. First, the Committee failed to retain independent counsel. Both New York and Delaware law contemplate that a special litigation committee be represented by independent" }, { "docid": "14884285", "title": "", "text": "common stock of corporate investment trust was actually paid for resignations of officers and directors and the directors’ election of the purchasers’ nominees as their successors. Although much of that sum never passed into the officers’ and directors’ hands, they were jointly and severally liable for its return because of their participation in a breach of fiduciary duty, even where they were acting only as agents. In addition, the defendants were required to account to the investment trust’s bankruptcy trustees for all profits they received and all damages they caused to the trust.) To successfully plead a claim for breach of fiduciary duty, the Trustee must allege factors establishing the existence of a fiduciary relationship, see Eickhorst v. E.F. Hutton Group, Inc., 763 F.Supp. 1196, 1203 (S.D.N.Y.1990); Northeast General Corp. v. Wellington Advertising, Inc., 82 N.Y.2d 158, 160, 604 N.Y.S.2d 1, 624 N.E.2d 129 (1993), and facts specifying the misconduct or wrongdoing which constitutes the breach of that duty. See Lippe v. Bairnco Corporation, 230 B.R. 906, 916 (S.D.N.Y.1999); Amfesco Industries, Inc. v. Greenblatt, 172 A.D.2d 261, 568 N.Y.S.2d 593, 595 (1991). Under New York law, officers and directors owe a fiduciary duty to the corporation which they serve. See Lippe, 230 B.R. at 916; H.W. Collections, Inc. v. Kolber, 682 N.Y.S.2d 189, 190 (1998); Amfesco, 568 N.Y.S.2d at 595 (duty to manage the property of the corporation in good faith, according to their best judgment and skill, and in the interest of the stockholders); Schwartz v. Marien, 37 N.Y.2d 487, 491, 373 N.Y.S.2d 122, 335 N.E.2d 334 (1975). There can be no doubt that the Trustee has alleged the existence of a fiduciary relationship between Maxwell and Stratton because he has alleged that Maxwell acted as the de facto Chief Financial Officer of the debtor. ¶¶ 27, 29, 32 and 74; see Princeton, 39 B.R. at 142 (the existence of a fiduciary relationship is demonstrated by pleading that defendants were officers and directors of the debtor). The Trustee’s additional allegation that, since RMS and Stratton are alter egos of each other, Maxwell, as a designated officer and director of" }, { "docid": "18209384", "title": "", "text": "N.Y.S.2d 920, 926, 393 N.E.2d 994 (1979)); see also Stern v. Gen. Elec. Co., 924 F.2d 472, 476 (2d Cir.1991) (“[U]nder the New York business judgment rule, the actions of corporate directors are subject to judicial review only upon a showing of fraud or bad faith.”). “At the same time, to earn the protection of the business judgment rule, directors must do more than merely avoid fraud, bad faith, and self-dealing.” In re 1st Rochdale Co-op Group, Ltd., 2008 WL 170410, at *1 (citing Hanson Trust PLC v. ML SCM Acquisition, Inc., 781 F.2d 264, 274 (2d Cir.1986)). “It is not enough that directors merely be disinterested and thus not disposed to self-dealing or other indicia of a breach of the duty of loyalty. Directors are also held to a standard of due care. They must meet this standard with ‘conscientious fairness.’ ” Hanson Trust, 781 F.2d at 274 (quoting Alpert v. 28 Williams St. Corp., 63 N.Y.2d 557, 483 N.Y.S.2d 667, 674, 473 N.E.2d 19 (1984)). Thus, a director “does not exempt himself from liability by failing to do more than passively rubber-stamp the decisions of the active managers.” Barr v. Wackman, 36 NY.2d 371, 381, 368 N.Y.S.2d 497, 329 N.E.2d 180 (N.Y.1975). Nor does the business judgment rule “protect directors in ‘omission’ cases where an injury results from the inaction of a director.” Frater v. Tigerpack Capital, Ltd., No. 98 Civ. 3306(SAS), 1999 WL 4892, at *4 (S.D.N.Y. Jan. 5, 1999). 2. Analysis Plaintiff argues that the MTD Decision precludes the subsequent application of the business judgment rule in this matter. (Pl.’s Opp’n at 42.) In support of this assertion, Plaintiff relies on Judge Karas’s comment that, “if the facts are as described by Plaintiff, it cannot be said, and Defendants have cited no authority to say, that as a matter of law Defendants should be immunized by the business judgment rule.” Bildirici, 2006 WL 2689869, at *6. However, Plaintiffs argument misconstrues the MTD Decision. First, Plaintiff seeks to imply a ruling on the merits in its favor from language that merely denied a portion of Defendants’ motion" }, { "docid": "18209382", "title": "", "text": "a cause of action based on the existence of a duty of care owed by directors of a corporation to the corporation’s creditors while the corporation allegedly operates in the so-called “zone of insolvency”; and (3) Plaintiff has failed to adduce a non-speculative evidentiary basis to support a conclusion that Defendants’ conduct caused its losses. As to Plaintiffs motion to conduct additional expert discovery pursuant to Rule 56(f), Plaintiff has not demonstrated that it is entitled to the relief it now seeks. Specifically, the request is untimely, Plaintiff has failed to adequately explain why it did not elicit the sought-after supplemental expert opinions during the time allotted to the parties to conduct discovery, and the proposed discovery would not address the principal defect in Plaintiffs causation theory. Accordingly, for the reasons set forth below, both of Plaintiffs motions are denied, and Defendants’ motion for summary judgment is granted. A. The Business Judgment Rule Defendants argue that they are entitled to the protections of the business judgment rule with respect to any potential liability arising out of their actions as directors of RSL Pic. (Defs.’ Mem. at 47-49; Defs.’ Opp’n at 15-17.) Relying on the “law of the case” doctrine, Plaintiff argues that Defendants are precluded by the MTD Decision from invoking this defense to either of its causes of action. (Pl.’s Opp’n at 41-42; PL’s Mem. at 22.) The Court is not persuaded by the arguments of either party. For the reasons stated below, because there are factual disputes regarding the actions taken by Defendants and the capacity in which those actions were taken, the application of the business judgment rule cannot be resolved at the summary judgment phase of this litigation. 1. Applicable Law “Under New York law, the business judgment rule ‘bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.’ ” In re 1st Rochdale Co-op Group, Ltd., No. 07 Civ. 7852(DC), 2008 WL 170410, at *1 (S.D.N.Y. Jan. 17, 2008) (quoting Auerbach v. Bennett, 47 N.Y.2d 619, 419" }, { "docid": "7437187", "title": "", "text": "Plaintiffs cannot assert these claims on behalf of Bairnco, Genlyte, Kaydon, Arlon, or Kasco because plaintiffs have no standing to do so and the directors and officers of these entities did not owe a fiduciary duty to Keene. See, e.g., Aviall, Inc. v. Ryder Sys., Inc., 913 F.Supp. 826, 832 (S.D.N.Y.1996) (“the officers and directors of a parent company owe allegiance only to that company and not to a wholly owned subsidiary”), aff'd, 110 F.3d 892 (2d Cir.1997). Fichthorn and Heller were never officers or directors of Keene and thus they owed no fiduciary duty to Keene. Shantz was an officer of Keene only from 1981 to 1982 and Gafiero was a Keene director only until 1986. Any claims against Shantz and Cañero for breach of fiduciary duty or unlawful payment of dividends would be time-barred, for any acts they engaged in as officers or directors of Keene occurred more than six years prior to the filing of Keene’s bankruptcy petition in December 1993 (or more than six years prior to the filing of the Coleman/Huffman actions in August 1993, assuming those actions tolled the statute of limitations). b. Sufficiency of the Pleading The claims set forth in Counts VII, XI, and XII are insufficiently pled with respect to the claims against the individual defendants, except Bailey. Indeed, the amended complaint fails to allege any specific fact concerning misconduct and/or wrongdoing on the part of any of the others. Under New York law, the business judgment rule bars judicial inquiry into “actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.” See Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 926, 393 N.E.2d 994 (1979); see generally Dennis J. Block, et al., The Business Judgment Rule 12-18 (5th ed. 1998) (“Block”). To overcome the presumption of legitimacy accorded to business decisions of the kind attacked here, the Second Circuit has held that a plaintiff must “allege that the directors acted fraudulently or in bad faith; allegations of ‘waste,’ standing alone, will not be enough.” Stern" }, { "docid": "9883987", "title": "", "text": "it alleges a proper purpose. Eluz advised the' Committee that MNF had been inadequately compensated under the 2009 Agreement, and in response, the Committee voted to void the 2009 Agreement and approved in principle the Superseding Agreement. (¶¶ 39-40.) The Complaint does not, in this regard, allege that it was improper or not in Ampal’s best interests to hire MNF to oversee the activities of Ampal’s direct and indirect subsidiaries or pay MNF for doing it. In fact,-it compliments “[t]he careful consideration that the Special Committee undertook in approving the original Management Agreement in February 2009,” (¶ 78), and compares it to the lack of similar consideration that attended its consideration of the Superseding Agreement. At most, the First Claim pleads gross negligence or lack of due care. The Independent Directors approved the Superseding Agreement without the same careful consideration they showed when they approved the Management Agreement. To paraphrase Walt Disney, 906 A.2d at 64-65, the Independent Directors failed to inform themselves of available material facts, which, without'more, does not constitute bad faith. See also Trinsum Grp., 466 B.R. at 611 (bad faith required knowing and complete failure to undertake responsibility) (internal quotations omitted). The Trustee’s authorities, all involving Delaware law, do not support the argument that bad faith or “conscious disregard” may be based solely, on inadequate inquiry; instead, the Trustee’s authorities required conscious wrongdoing. See In re JPMorgan Chase & Co. Derivative Litig., No. 12 Civ. 03878, 2014 WL 1297824, at *4 (S.D.N.Y. Mar. 31, 2014) (“Bad faith ‘in the corporate fiduciary duty of loyalty context [includes] (among other things) a failure to act in the face of a known duty to act, which demonstrates a conscious disregard of one’s duties,’ ” and may be shown by a conscious disregard of an obligation to be reasonably informed about the business and its risks or the duty to monitor and oversee the business) (quoting Gatz Properties, LLC v. Auriga Capital Corp., 59 A.3d 1206, 1216-17 (Del.2012) (quotation marks omitted)); Trinsum Grp., 466 B.R. at 618 (“An allegation that a director breached its fiduciary duty by a conscious disregard" }, { "docid": "2941604", "title": "", "text": "position that there is a blanket duty to liquidate upon insolvency, untempered by the business judgment rule.”); Steinberg v. Kendig (In re Ben Franklin Retail Stores, Inc.), 225 B.R. 646, 655 (Bankr.N.D.Ill.1998)(no duty “to liquidate and pay creditors when the corporation is near insolvency, provid ed that in the directors’ informed, good faith judgment there is an alternative”), aff'd in part & rev’d in other part, No. 97 C 7934, 2000 WL 28266 (N.D.Ill.2000). As a result, a manager’s negligent but good faith decision to operate an insolvent business will not subject him to liability for “deepening insolvency.” To overcome the business judgment rule, a complaint must contain specific allegations that the fiduciary acted in bad faith or with fraudulent intent. See Lippe v. Bairnco Corp., 230 B.R. 906, 916— 17 (S.D.N.Y.1999). Although subsequent allegations in the Complaint, discussed below, accuse the Goldmans of self-dealing, the Complaint does not allege that the Insider Defendants prolonged Global’s life to misappropriate the transfers they received. Rather, the First Cause of Action wrongly assumes that prolonging the life of an insolvent corporation that continues to incur debt, without more, states a claim for relief. The First Cause of Action also fails to allege proximate cause. The Complaint implies that “but for” Atlantic Bank’s loans, the debtor would have liquidated before its insolvency became deeper. In Investors Funding Corp., the trustee made a similar argument that “but for” the false financial statements prepared by the defendant accountants, the debtor would not have been able to sell securities, and the insiders would not have been able to steal the sale proceeds. 523 F.Supp. at 539-40. Applying traditional tort concepts, the District Court concluded that the trustee had failed to plead proximate cause, i. e., that “ ‘the damage was either a direct result or a reasonably foreseeable result of the misleading statement.’ ” Id. at 539 (quoting Globus v. Law Research Serv., Inc., 418 F.2d 1276, 1291 (2d Cir.1969), cert. denied, 397 U.S. 913, 90 S.Ct. 913, 25 L.Ed.2d 93 (1970)). It was arguably foreseeable that the false financial statements would allow the debtor to" }, { "docid": "7437188", "title": "", "text": "Coleman/Huffman actions in August 1993, assuming those actions tolled the statute of limitations). b. Sufficiency of the Pleading The claims set forth in Counts VII, XI, and XII are insufficiently pled with respect to the claims against the individual defendants, except Bailey. Indeed, the amended complaint fails to allege any specific fact concerning misconduct and/or wrongdoing on the part of any of the others. Under New York law, the business judgment rule bars judicial inquiry into “actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.” See Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 926, 393 N.E.2d 994 (1979); see generally Dennis J. Block, et al., The Business Judgment Rule 12-18 (5th ed. 1998) (“Block”). To overcome the presumption of legitimacy accorded to business decisions of the kind attacked here, the Second Circuit has held that a plaintiff must “allege that the directors acted fraudulently or in bad faith; allegations of ‘waste,’ standing alone, will not be enough.” Stern v. General Elec. Co., 924 F.2d 472, 476 (2d Cir.1991); see also Block at 18-25. The amended complaint is bereft of specific allegations as to any bad faith or fraudulent intent on the part of Fichthorn, Heller, Shantz, or Cañero. Only one paragraph in the 119-page amended complaint refers specifically to Anderson, and that paragraph does not allege any fraudulent or bad faith conduct on his part. (Am.Cmplt^ 58). Nor are there facts alleged in the amended complaint to support the conclusory allegation that Mahoney, Metzger, or Mileaf “authorized or approved” any asset sales by Keene. As officers of Keene, as opposed to directors, they lacked authority to “authorize and approve” sales of Keene divisions and/or the payment of dividends. See NYBCL § 701 (“the business of a corporation shall be managed under the direction of its board of directors”). Nor are there any specific allegations that Mahoney, Metzger, or Mileaf acted fraudulently or in bad faith. The amended complaint, however, contains specific allegations against Bailey. He was chairman of Keene’s board of directors commencing" }, { "docid": "9884002", "title": "", "text": "business judgment rule, which bars judicial inquiiy into actions by corporate fiduciaries “taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.” Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994, 1000 (1979), accord Patrick v. Allen, 355 F.Supp.2d 704, 710 (S.D.N.Y.2005). A complaint charging a breach of fiduciary duty must “plead around” the business judgment rule. To survive a motion to dismiss, the complaint must allege that the director or officer acted fraudulently or in,bad faith, Stern, 924 F.2d at 477; Lippe v. Bairnco Corp., 230 B.R. 906, 916-17 (S.D.N.Y.1999); Kittay v. Atlantic Bank of New York (In re Global Serv. Grp., LLC), 316 B.R. 451, 461 (Bankr.S.D.N.Y.2004), lacked disinterested independence, Patrick v. Allen, 355 F.Supp.2d at 711, or acted without due care or reasonable diligence. Geltzer v. Altman (In re 1st Rochdale Coop. Group, Ltd.), No. 07 Civ. 7852(DC), 2008 WL 170410, at *3 (S.D.N.Y. Jan. 17, 2008). If it.does, the complaint cannot be dismissed solely upon the application of the business judgment rule. Patrick v. Allen, 355 F.Supp.2d at 711 (declining to apply business judgment rule where complaint adequately alleged that defendants were interested); see also Croton River Club, Inc. v. Half Moon Bay Homeowners Assoc., Inc. (In re Croton River Club, Inc.), 52 F.3d 41, 44 (2d Cir.1995) (“It is black-letter, settled -law that when a corporate director or officer has an interest in a decision, the business judgment rule does not apply.”). The Complaint alleges that Eluz breached her fiduciary .duty in connection with the payment of the 2010 and 2011 management and “consulting” fees because she was not disinterested and acted in bad faith and without due care. i. First Claim — 2010 Fees The First Claim alleges that Eluz breached her fiduciary duties to Ampal in connection with the 2010 fees by (a) failing to review quarterly the services provided to Ampal by MNF; (b) faffing to advise the Committee in a timely fashion of any change hr the nature, extent or scope of the services provided by MNF pursuant" }, { "docid": "18209383", "title": "", "text": "of their actions as directors of RSL Pic. (Defs.’ Mem. at 47-49; Defs.’ Opp’n at 15-17.) Relying on the “law of the case” doctrine, Plaintiff argues that Defendants are precluded by the MTD Decision from invoking this defense to either of its causes of action. (Pl.’s Opp’n at 41-42; PL’s Mem. at 22.) The Court is not persuaded by the arguments of either party. For the reasons stated below, because there are factual disputes regarding the actions taken by Defendants and the capacity in which those actions were taken, the application of the business judgment rule cannot be resolved at the summary judgment phase of this litigation. 1. Applicable Law “Under New York law, the business judgment rule ‘bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.’ ” In re 1st Rochdale Co-op Group, Ltd., No. 07 Civ. 7852(DC), 2008 WL 170410, at *1 (S.D.N.Y. Jan. 17, 2008) (quoting Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 926, 393 N.E.2d 994 (1979)); see also Stern v. Gen. Elec. Co., 924 F.2d 472, 476 (2d Cir.1991) (“[U]nder the New York business judgment rule, the actions of corporate directors are subject to judicial review only upon a showing of fraud or bad faith.”). “At the same time, to earn the protection of the business judgment rule, directors must do more than merely avoid fraud, bad faith, and self-dealing.” In re 1st Rochdale Co-op Group, Ltd., 2008 WL 170410, at *1 (citing Hanson Trust PLC v. ML SCM Acquisition, Inc., 781 F.2d 264, 274 (2d Cir.1986)). “It is not enough that directors merely be disinterested and thus not disposed to self-dealing or other indicia of a breach of the duty of loyalty. Directors are also held to a standard of due care. They must meet this standard with ‘conscientious fairness.’ ” Hanson Trust, 781 F.2d at 274 (quoting Alpert v. 28 Williams St. Corp., 63 N.Y.2d 557, 483 N.Y.S.2d 667, 674, 473 N.E.2d 19 (1984)). Thus, a director “does not exempt himself from" }, { "docid": "10306436", "title": "", "text": "controlling stockholder or group of stockholders” as a fiduciary). Corporate officers and directors are likewise fiduciaries. Pepper, 308 U.S. at 306, 60 S.Ct. 238; Twin-Lick Oil Co. v. Marburg, 91 U.S. 587, 588, 23 L.Ed. 328 (1875); see also Rothman v. Beeber (In re Beeber), 239 B.R. 13, 32 (Bankr. E.D.N.Y. 1999) (“The law is clear that a corporate officer and director has a fiduciary duty to the corporation itself as well as the stockholders in general.”). The meaning of “acting in a fiduciary capacity” implicates state law “to the extent that [state law] prescribes elements of a trust or regulates fiduciary obligations.” In re Tashlitsky, 429 B.R. at 644. For instance, while closely held corporations commonly operate with a lesser degree of corporate formality than publicly held corporations, in New York, a shareholder of a closely held corporation owes fiduciary duties to his fellow shareholders, in addition to those fiduciary obligations that arise out of his role as an officer or director of the corporation. Fox v. Koplik (In re Perry H. Koplik & Sons, Inc.), 476 B.R. 746, 797-800 (Bankr. S.D.N.Y. 2012), adopted in relevant part by 499 B.R. 276 (S.D.N.Y. 2013), aff'd, 13-3472-CV, 567 Fed.Appx. 43, 2014 WL 2109064 (2d Cir. May 21, 2014); Global Minerals & Metals Corp. v. Holme, 35 A.D.3d 93, 824 N.Y.S.2d 210, 212 (2006). New York considers the secretary of a corporation to be a fiduciary. Vogel v. N.Y. State Dep’t of Taxation & Fin., 98 Misc.2d 222, 413 N.Y.S.2d 862 (N.Y. Sup. Ct. 1979) (citing N.Y. Bus. Corp. Law § 715). Here, Viking qualifies as a closely held corporation, since the shares were divided amongst only three individuals at the time the parties entered into the Agreement. Also, the Debtor signed the Agreement on behalf of Viking as “Secretary.” Compl. Ex. B 9, ECF No. 1-4. Furthermore, the Complaint alleges that beginning in October 2005, the Debtor, together with Michael Fontana, dominated Viking’s operations and controlled its finances. Compl. ¶ 11, ECF No. 1. The Debtor’s access to corporate funds appears to have been unrestricted, as he purportedly excluded the Plaintiff" } ]

[ { "docid": "22657266", "title": "", "text": "the applicant had made a substantial showing of a denial of a constitutional right. See, e. g., Kasi v. Angelone, 300 F. 3d 487 (CA4 2002); Wheat v. Johnson, 238 F. 3d 357 (CA5 2000). The Court today disapproves this approach, which improperly resolves the merits of the appeal during the COA stage. Ante, at 331, 335-338. Less clear from the Court’s opinion, however, is why a “circuit justice or judge,” in deciding whether to issue a COA, must “look to the District Court’s application of AEDPA to [a habeas petitioner’s] constitutional claims and ask whether that resolution was debatable amongst jurists of reason.” Ante, at 336 (emphasis added). How the district court applied AEDPA has nothing to do with whether a COA applicant has made “a substantial showing of the denial of a constitutional right,” as required by 28 U. S. C. § 2253(c)(2), so the AEDPA standard should seemingly have no role in the COA inquiry. Section 2253(c)(2), however, provides that “[a] certificate of appealability may issue ... only ¿/the applicant has made a substantial showing of the denial of a constitutional right.” (Emphasis added.) A “substantial showing” does not entitle an applicant to a COA; it is a necessary and not a sufficient condition. Nothing in the text of § 2253(c)(2) prohibits a circuit justice or judge from imposing additional requirements, and one such additional requirement has been approved by this Court. See Slack v. McDaniel, 529 U. S. 473, 484 (2000) (holding that a habeas petitioner seeking to appeal a district court’s denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling). The Court today imposes another additional requirement: A circuit justice or judge must deny a COA, even when the habeas petitioner has made a substantial showing that his constitutional rights were violated, if all reasonable jurists would conclude that a substantive provision of the federal habeas statute bars relief. Ante, at" } ]

[ { "docid": "11429841", "title": "", "text": "of ap-pealability to include his Apprendi claim. II. Analysis A. Apprendi Claim On appeal of a district court’s decision to grant or to deny an application for writ of habeas corpus, we review all questions of law de novo. Small v. Endicott, 998 F.2d 411, 414 (7th Cir.1993). In order to appeal a district court’s ruling on a writ of habeas corpus, an applicant is required to obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B); Fed. R.App. P. 22(b)(1). Because the certificate in this case is limited to only the ineffective assistance claims, we will first address Rodriguez’s petition to expand the certificate to include his claim under Apprendi. “A certificate of appealability may issue [by a district or circuit judge] ... only if the applicant has made a substantial showing of the denial of a constitutional right ... [and the certificate] shall indicate which specific issue or issues satisfy that showing.” 28 U.S.C. § 2253(c); see also Williams v. Parke, 133 F.3d 971, 975 (7th Cir.1997). Rodriguez fails to make this showing, and therefore his request to expand the certificate of appealability is denied. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), a substantial showing of a denial of a constitutional right “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Here, the district court did not address the substantive issues underlying Rodriguez’s proposed habeas claim under Apprendi, but instead denied his post-judgment motions that sought to raise that claim. When a district court denies a habeas claim on procedural grounds, a circuit court should only expand the certificate to include that claim if a prisoner at least demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim" }, { "docid": "22217607", "title": "", "text": "psychiatric reports, constituted evidence with sufficient reliability to support the Board’s denial of parole. Therefore we cannot conclude that the state court’s decision upholding this denial was “contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). II. Rosas also contends that he is entitled to habeas relief because his guilty plea was not knowing and voluntary, thereby denying him due process and effective assistance of counsel at sentencing. The district court dismissed this claim as time-barred and later denied Rosas’s request for a certificate of appealability on the issue. Unlike Rosas’s claim for denial of parole, the challenge to his underlying conviction “arises out of process issued by a State court,” and therefore Rosas must obtain a certificate of appealability in order for us to entertain his appeal. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability should issue only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the district court dismisses the petition on procedural grounds, a certificate of appealability should issue only if the petitioner can show: (1) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”; and (2) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Rosas has failed to meet this standard with respect to the district court’s resolution of the statute of limitations issue. The statute of limitations on habeas corpus petitions filed by state prisoners in federal court is one year. 28 U.S.C. § 2244(d)(1). State prisoners like Rosas, whose convictions became final prior to the enactment of this one-year statute of limitations, had until April 24,1997 to file their petitions. Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001). Rosas did not file a petition challenging his sentence until 2000. Moreover, nothing in the record suggests" }, { "docid": "22911937", "title": "", "text": "petition for a writ of habeas corpus, and the Court gave the parties approximately a month to notify it if they sought additional discovery and a hearing. Id. at 791. On January 18, 2002, however, Judge Dalzell gave way to the Commonwealth’s fourth motion seeking his recusal. See Lambert v. Blackwell, 205 F.R.D. 180 (E.D.Pa.2002). Lambert’s petition was consequently transferred to Judge Anita Brody of the Eastern District of Pennsylvania. After holding a hearing on the Commonwealth’s motion to dismiss, Judge Brody denied Lambert’s petition and dismissed it with prejudice. Judge Brody concluded that, contrary to Judge Dalzell’s previous decision, the PCRA Court’s determinations were not null and void and were entitled to deference under AEDPA. After reviewing Lambert’s claims accordingly, Judge Bro-dy concluded that they were without merit. The District Court granted Lambert a certificate of appealability, and Lambert timely appealed. The Commonwealth also timely filed a cross-appeal. II. JURISDICTION AND STANDARD OF REVIEW The District Court exercised jurisdiction under 28 U.S.C. § 2254, and the District Court’s order dismissing Lambert’s habeas petition is a final decision for purposes of 28 U.S.C. § 1291. Yet Lambert must surmount an additional hurdle before we can properly exercise appellate jurisdiction over her appeal. We only have jurisdiction if this Court or a District Court has properly issued a certificate of appealability pursuant to 28 U.S.C. § 2253(c). See United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc). A COA may issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If “a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In addition, a COA must “indicate which specific issue or issues satisfy” that standard. 28 U.S.C. § 2253(c)(3). Here, the District Court failed to specify which of the voluminous issues Lambert raised in her habeas petition" }, { "docid": "21947351", "title": "", "text": "molested his niece on the weekend of August 9-11,1997. 7. Petitioner is entitled to relief with respect to the charges at No. 3206 of 1997, and a writ of habeas corpus should issue as to them. 8. Counsel’s error did not deny Petitioner a fair trial with respect to the other crimes charged and, accordingly, Petitioner is not entitled to relief with respect to the remainder of his state court sentence. E. CERTIFICATE OF APPEALA-BILITY Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253(as amended)) codified standards governing the issuance of a certificate of appealability for appellate review of a district court’s disposition of a habeas petition. Amended Section 2253 provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Where the federal district court has rejected a constitutional claim on its merits, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong...” Szuchon v. Lehman, 273 F.3d 299, 312 (3d Cir.2001) quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). A petitioner meets this standard if he can show that the issue “is debatable among jurists, or that a court could resolve the issue differently, or that the question deserves further proceedings.” McCracken v. Gibson, 268 F.3d 970, 984 (10th Cir.2001). Under 28 U.S.C. § 2253(c)(3), the district court must identify which specific issues satisfy the standard. A certificate of appealability should be denied. III. CONCLUSION Wherefore, on the basis of the foregoing, it is respectfully recommended that the instant petition for writ of habeas corpus be granted at to the charges relating to August 9-11, 1997 only, and dismissed in all other respects. In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of service to file writ ten objections to this Report and Recommendation. Any party opposing the objections shall" }, { "docid": "2875794", "title": "", "text": "action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable" }, { "docid": "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": "23657085", "title": "", "text": "in both habeas corpus proceedings and other contexts”). We begin our discussion by setting forth the limited circumstance under which a court may issue a COA. The right to appeal is governed by the COA requirements set forth in 28 U.S.C. § 2253(c): (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). Under this limited provision, if a district court denies a habeas petition on procedural grounds without reaching the petitioner’s underlying constitutional claims, a COA should issue only if the petitioner shows “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1601, 146 L.Ed.2d 542 (2000). “[B]oth showings [must] be made before the court of appeals may entertain the appeal.” Id. at 485, 120 S.Ct. at 1604. If the procedural bar is obvious and the district court correctly invoked it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at 484, 120 S.Ct. at 1604. The court may first resolve the issue whose answer is more apparent from the record and the arguments. Id. at 485, 120 S.Ct. at 1604. “The recognition that the court will not pass upon a constitutional question" }, { "docid": "10631315", "title": "", "text": "counsel. . Section § 848(q)(4)(B) provides that, \"[i]n any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation ... shall be entitled to the appointment of one or more attorneys....” 21 U.S.C. § 848(q)(4)(B), repealed by Terrorist Death Penalty Enhancement Act of 2005, Pub.L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192, 232 (2006). . Judge Greenberg dissented, stating that he would have dismissed the appeal. . Judge Greenberg again dissented from the denial of panel rehearing. Michael v. Horn, 414 F.3d 456, 2005 WL 1606069, at *1-8 (3d Cir. July 7, 2005) (Greenberg, J., dissenting). . Judge Greenberg concurred to emphasize that he viewed whatever had happened in the District Court respecting Michael's vacillations as \"beyond the scope of our certificate of appealability.” Michael, 144 Fed.Appx. at 264 (Greenberg, J., concurring). Judge Nygaard dissented because he believed that the June 2 order was correct and, to the extent it was ambiguous, could be supplemented. Id. at 264-65 (Nygaard, J., dissenting). . A COA may issue only upon \"a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a \"district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where, as here, the District Court has rejected the claims on procedural grounds, the prisoner must establish “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. . It is also well settled that a defendant has a right to waive representation. See Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct." }, { "docid": "11812487", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY PAUL KELLY, JR., Circuit Judge. Petitioner Daniel Dill, a state prisoner proceeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habe-as petition. We deny his request for a COA and dismiss the appeal. On October 29, 2003, Mr. Dill was convicted by a jury in Oklahoma state court on five felony counts. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction on January 4, 2005. Mr. Dill did not seek a writ of certiorari with the United States Supreme Court. On March 23, 2006, he applied for post-conviction relief in state district court. See Moore v. Gibson, 27 P.3d 483, 484 n. 1 (Okla.Crim.App.2001) (explaining that “an application for post-conviction relief in a non-capital case is always deemed to be timely filed” because there are no applicable time limitations). The motion was denied and that decision was affirmed by the OCCA on February 21, 2007. On April 4, 2007, Mr. Dill submitted his federal habeas petition to prison officials for mailing, and it was filed on April 16, 2007. The district court determined that the petition was time-barred under the one-year limitations period in 28 U.S.C. § 2244(d), and that equitable tolling did not apply. As the district court dismissed the habeas petition on procedural grounds, we may issue a COA only if Mr. Dill makes a substantial showing that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see 28 U.S.C. § 2253(c)(2). ■ [1] The one-year limitations period for filing a federal habeas petition runs from the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction is “final” (and the one-year limitations period begins to" }, { "docid": "21868709", "title": "", "text": "that he had motioned to his pocket when he was in the store, the jury could also reasonably infer that the gun was physically available and accessible to him during the in-store robbery. In short, viewing all the testimony in the light most favorable to the prosecution, the court concludes that the Delaware Supreme Court did not unreasonably apply Jackson in finding sufficient evidence to sustain petitioner’s weapons conviction. Thus, this claim does not warrant habeas relief under § 2254(d)(1). Y. CERTIFICATE OF APPEALABILITY Finally, the court must decide whether to issue a certificate of appealability. See Third Circuit Local Appellate Rule 22.2. The court may issue a certificate of appeal-ability only when a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the denial of a constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. For the reasons stated above, the court concludes that petitioner is not entitled to federal habeas relief for any of his claims. Reasonable jurists would not find these conclusions unreasonable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued. VI. CONCLUSION For the foregoing reasons, petitioner’s application for habeas relief filed pursuant to 28 U.S.C. § 2254 will be denied. An appropriate order will be entered. ORDER For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that: 1. Petitioner Claude A. Jones’ application for a writ of habeas corpus pursuant to 28" }, { "docid": "18128604", "title": "", "text": "and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996) (quoting 28 U.S.C. § 2255). The Court finds the record in this case conclusively shows that the defendant is not entitled to relief, and thus, will dismiss the motion without a hearing. III. CERTIFICATE OF APPEALA-BILITY A petitioner must obtain a certifícate of appealability (“COA”) before pursuing any appeal from a final order in a § 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a § 2255 motion is based on the merits of the claims in the motion, a district court should issue a certificate of appealability only when the appeal presents a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, the Supreme Court stated that when a district court rejects the constitutional claims on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Because the defendant has not made a substantial showing of the denial of a constitutional right, and because the Court finds that reasonable jurists would not find the Court’s assessments of his constitutional claims debatable or wrong, the Court declines to issue a certificate of appealability. IV. CONCLUSION Because the defendant was lawfully arrested on May 12, 2008, the Court concludes that Ms. Shaner’s failure to file a motion to quash the indictment or a motion to suppress evidence resulted in no prejudice to defendant’s case. Thus, defendant’s Motion must be denied. A separate Order consistent with this Memorandum Opinion shall issue this date. . The government inconsistently identified the FBI Agent who spoke with the tipster on May 12, 2008. Compare Opp'n 16 (\"citizen contacted Agent DeJesus\"), with id. at 25 (\"citizen contacted that FBI agent”), and DeJesus Aff. ¶ 13, ECF No. 1-1 (\"citizen contacted the FBI agent”). Special Agent DeJesus testified that his affidavit was true and accurate" }, { "docid": "22911938", "title": "", "text": "a final decision for purposes of 28 U.S.C. § 1291. Yet Lambert must surmount an additional hurdle before we can properly exercise appellate jurisdiction over her appeal. We only have jurisdiction if this Court or a District Court has properly issued a certificate of appealability pursuant to 28 U.S.C. § 2253(c). See United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc). A COA may issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If “a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In addition, a COA must “indicate which specific issue or issues satisfy” that standard. 28 U.S.C. § 2253(c)(3). Here, the District Court failed to specify which of the voluminous issues Lambert raised in her habeas petition satisfy the standard for issuance of a COA. The Court concluded: “Although in very different contexts, two federal judges have examined the claims of the petitioner Lambert and have reached different outcomes. Accordingly, a COA will be GRANTED.” Lambert v. Blackwell, 2008 WL 1718511, at *56 (E.D.Pa. April 1, 2003). In the ordinary course, we would remand to the District Court to clarify its order to comply with the specificity requirements of 28 U.S.C. § 2253(c)(3). See Szuchon v. Lehman, 273 F.3d 299, 311 n. 5 (3d Cir.2001). Where the parties have fully briefed the substantive issues before bringing to our attention that the COA was inadequately specific, however, this Court has viewed the District Court’s certificate as a nullity and construed the petitioner’s notice of appeal as a request for us to issue a COA. Id. We follow that course here. Lambert has raised several issues on appeal. On each issue, two federal district court judges-albeit in different procedural postures-reached differing conclusions as to whether constitutional error at trial warranted granting habeas relief. As" }, { "docid": "22409032", "title": "", "text": "(AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), his right to appeal is governed by the AEDPA. See Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Tillman v. Cook, 215 F.3d 1116, 1120 (10th Cir.2000). In order for this court to grant a certificate of appealability and proceed to the merits of Mr. Kennedy’s appeal, he must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In addressing the requirements of obtaining a certificate of appealability under § 2253(c),' the Supreme Court recently stated the petitioner must show a substantial denial of a constitutional right by demonstrating “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, 120 S.Ct. at 1603-04 (quoting Barefoot v. Estelle, 463 U.S., 880, 893 and n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)) (further quotation marks omitted). See also Tillman, 215 F.3d at 1120. A review of the record establishes Mr. Kennedy failed to make the requisite showing for a certificate of appealability. For the foregoing reasons, we deny Mr. Kennedy’s request for a certificate of appealability and dismiss his appeal. Keeping in mind the standard of review governing a request for a certificate of appealability, we note our standard of review over the district court’s determination of a 28 U.S.C. § 2255 motion is clearly established. “[W]e review the district court’s legal rulings on a § 2255 motion de novo and its findings of fact for clear error.” United States v. Pearce, 146 F.3d 771, 774 (10th Cir.1998); accord United States v. Blackwell, 127 F.3d 947, 950 (10th Cir.1997). Under 28 U.S.C. § 2255, the district court is required to conduct an evidentiary hearing “[ujnless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” United States v. Lopez, 100 F.3d 113, 119 (10th Cir.1996) (quotation marks and citation omitted). For the following reasons," }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "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": "15137365", "title": "", "text": "unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless. D. Certificate of Appealability An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. This issue was central to petitioner’s trial and this Court’s resolution of the issue is central to this habeas proceeding. This claim not only is fact-intensive but also implicates numerous fundamental rights. That being so, the Court is more than satisfied that reasonable jurists could find its" }, { "docid": "15898422", "title": "", "text": "Mills. The Magistrate Judge recommended that the writ be granted on the condition that the Commonwealth either conduct a new sentencing hearing within 120 days or impose life imprisonment. The Commonwealth objected to the recommendation by arguing for the first time that the Mills claim should be denied as procedurally defaulted given Szuchon’s failure to exhaust the claim and the present unavailability of state remedies. The District Court summarily overruled the objections, adopted the Report and Recom- , mendation, granted the writ in accordance with the Magistrate Judge’s recommendation, and denied Szuchon’s remaining claims. The District Court also issued a certificate of appealability but failed to specify the issues on which Szuchon had made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(3) (“The certificate of appealability ... shall indicate which specific issue or issues satisfy the showing required .... ”). The Commonwealth timely appealed (C.A. No. 00-9000), and Szuchon timely cross-appealed (C.A. No. 00-9001). II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction pursuant to 28 U.S.C. § 2254(a). We have jurisdiction over the Commonwealth’s appeal pursuant to 28 U.S.C. § 1291. As to Szuchon’s cross-appeal, we have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 1291 over the issues that satisfy the certificate of appealability standard. See United States v. Cepero, 224 F.3d 256, 261-62 (3d Cir.2000) (en banc) (holding that issuance of a certificate of appealability is a jurisdictional requirement). Because the District Court failed to specify the issues for appeal, we will undertake that analysis here. A certificate of appealability may issue only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If “a district court has rejected the constitutional claims on the merits, the showing required to satisfy, § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Our review is plenary on the merits of the claims over which we have jurisdiction," }, { "docid": "23518656", "title": "", "text": "addressed Mr. Adams’ contention that pursuant to Houston v. Lack, his second state petition was “filed” when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams’ federal habeas petition timely. We granted a certificate of appealability, vacated the district court’s order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams’ federal petition untimely. We granted a certificate of ap-pealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal. DISCUSSION Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which requires the issuance of a certificate of appealability before an appeal can proceed in our court. See 28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As mentioned earlier, we granted a certificate of appealability on the issue of the timeliness of Mr. Adams’ federal petition. However, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appeal-ability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Therefore, the determination of whether a certificate of appealability should issue in this case must have “two components, one directed at" }, { "docid": "22840828", "title": "", "text": "State court.’ ” Montez, 208 F.3d at 867 (quoting 28 U.S.C. § 2253(c)(1)(A)). Mr. Davis’s initial confinement is a “matter[] flowing from a state court detention order.” Id. at 869. We therefore consider whether Mr. Davis is entitled to a COA on his § 2241 claim. See id. at 867-69. Section 2253(c)(2) states: “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Although the statutory language does not address a district court denial of habeas relief on procedural grounds, the Supreme Court has said: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). It follows that “[wjhere a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.” Id. The Supreme Court did not discuss what the proper course would be when there is a “plain procedural bar” that the district court did not invoke. But the answer seems clear. In general, “[w]e have discretion to affirm on any ground adequately supported by the record.” Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir.2004). No reason suggests itself why this principle should be rejected in considering an application for a COA. Accordingly, we may deny a COA if there is a plain procedural bar to habeas relief, even though the district court did not rely on that bar. Here, there is a plain procedural bar to Mr. Davis’s" } ]

[ { "docid": "2533310", "title": "", "text": "proceeds from racketeering activity for personal purposed, [sic] including the purchase of luxury items, international travel, Swedish massage treatments for defendant Martin and her ex-boyfriend and other non-legitimate purposes.” Here, “it cannot be said that the complaint ‘is totally devoid of solid, nonconclusory allegations’ ” regarding Martin’s use of DMA as her corporate alter-ego As a result, defendants’ motion to dismiss the breach of contract, fraud, conversion, negligent misrepresentation and unjust enrichment claims against Martin is denied. B. Conversion “ ‘Conversion is any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessory right of another in the property.’ ” When the original possession is lawful, “ ‘conversion does not occur until the defendant refuses to return property after demand or until he sooner disposes of the property.’ ” “To maintain a claim for conversion, a plaintiff must show: (1) the property subject to conversion is ‘a specific identifiable thing;’ (2) plaintiff had ‘ownership, possession or control’ over the property before its conversion; and (3) defendant ‘exercised an unauthorized dominion over the thing in question, to the alteration of its condition or to the exclusion of the plaintiffs rights.’ ” However, an action for conversion cannot be validly maintained “where damages are merely being sought for breach of contract.” Rather, a plaintiff must show acts that were unlawful or wrongful as opposed to mere violations of contractual rights. The money at issue here is specifically identifiable as payments for the celebrity stylist services provided by Moses to her customers. Moses was the rightful owner of this money as the provider of the services to her customers. While DMA was authorized to collect payments from Moses’s customers for whom it had entered into deal memos, it was obliged to transfer the payments, less the twenty percent commission, to Moses. Although Moses demanded that DMA remit the payments to her, DMA retained control over the revenue and thus interfered with plaintiffs superior possessory right. DMA’s continued retention of the payments collected from plaintiffs" } ]

[ { "docid": "14662144", "title": "", "text": "at *5 (internal quotations omitted). To determine whether contract and conversion claims are distinct, courts look to the legal authority underlying the claims and the damages claimed in each action. See American Equities Group, Inc. v. Ahava Dairy Prods. Corp., No. 01 Civ. 5207, 2004 WL 870260, at *16 (S.D.N.Y. Apr. 23, 2004); Fabry’s S.R.L. v. IFT Intern., Inc., 02 Civ. 9855, 2003 WL 21203405, at *3 (S.D.N.Y. May 21, 2003) (“A plaintiff must show acts that were unlawful or wrongful as opposed to mere violations of contractual rights.”); New York Racing Assoc., Inc. v. Meganews, Inc., No. 97 Civ. 1091, 2000 WL 307378, at *5 (E.D.N.Y. Mar. 21, 2000) (finding the conversion claim duplicative in part because “it seeks the same damages as are claimed in the contract claim”). Here, the authority upon which plaintiff claims legal ownership of the account proceeds arises from the parties’ agreements, from the same terms upon which plaintiff asserts, and prevails upon, his breach of contract claim. The same wrong underlies each action, namely, Hunt Health’s retention of proceeds on accounts it had sold to Towers. This retention constitutes a material breach that, among other things, caused Hunt Health’s indebtedness to Towers to become immediately due, see supra I.E.l.c., and obviated Towers’ obligation to collect on accounts, see supra I.E.2.C. Hunt Health’s retention of proceeds is only unlawful insofar as it constitutes a breach of its agreement with Towers. As plaintiff bases his conversion claim upon this breach, the conversion claim merely duplicates the breach of contract claim. Moreover, as with the breach of contract claim, plaintiff seeks for Hunt Health’s conversion the return of proceeds Hunt Health retained on accounts receivable it sold to Towers, up to the amount of advances Towers made. The damages sought by plaintiff confirm that the claims are duplicative, rather than independent. The Court therefore finds that plaintiff may not recover for conversion. III. Plaintiff’s Breach of Guaranty Claim Plaintiff also asserts a claim for breach of guaranty claim against defendants. The Court has granted summary judgment to plaintiff that P & G and MHTJ, the signatories" }, { "docid": "4806529", "title": "", "text": "these contracts, despite the fact that Defendants are or should be in possession of its company contracts.” (Pl.’s Opp’n at 22 n. 10.) In defendants’ view, plaintiff has failed to “attach or identify any supposed written contracts between him and [Countrywide],” and has thus failed to give defendants sufficient notice of his claim. “To state a claim in federal court for breach of contract under New York law, a complaint need only allege (1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.” Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir.1996). “While these elements need not be separately pleaded, failure to allege them will result in dismissal.” Tray-Wrap, Inc. v. Veneman, 2004 WL 2346619, at *3 (S.D.N.Y. Oct. 18, 2004). Only the first element is at issue here. “In order to adequately allege the existence of an agreement, a plaintiff must plead the provisions of the contract upon which the claim is based.” Howell v. Am. Airlines, Inc., 2006 WL 3681144, at *3 (E.D.N.Y. Dec. 11, 2006) (internal quotation marks omitted). “A plaintiff need not attach a copy of the contract to the complaint or quote the contractual provisions verbatim.” Id. (citations omitted). “However, the complaint must at least set forth the terms of the agreement upon which liability is predicated by express reference.” Id. (internal quotation marks and alteration omitted). Here, plaintiff has not specifically identified the contract (or contracts) at issue and has not specified the terms of the agreement that defendant purportedly breached, other than to assert that these “certain contracts” set forth “the commissions and other elements of compensation to be paid to Plaintiff.” (Am. Compl. ¶ 172.) Because plaintiff has failed to plead an essential element of his breach of contract claim, defendants’ motion to dismiss that claim is granted. See Howell, 2006 WL 3681144 at *4; Tray-Wrap, Inc., 2004 WL 2346619 at *4. X. Plaintiff’s Unjust Enrichment Claim To maintain an unjust enrichment claim in New York, a plaintiff must allege “that the defendant received a benefit" }, { "docid": "17864433", "title": "", "text": "creditors] — the essence of this claim for unjust enrichment — was paid under the [a]greement, and the rights, if any, to the return of that consideration cannot be considered without at least some consideration of the [a]greement and its terms.” (footnotes omitted)), with Innovative BioDefense, Inc. v. VSP Techs., No. 12-CV-3710, 2013 WL 3389008, at *5 (S.D.N.Y. July 3, 2013) (“[The] [p]laintiff argues that [the] [defendants’ unjust enrichment counterclaim raises extra-contractual allegations and thus, should not be governed by the choice-of-law provision. The [c]ourt agrees. Claims for unjust enrichment or quantum meruit are non-contractual, equi table remedies and are therefore outside the scope of the parties’ choice-of-law provision.” (italics, footnote, and internal quotation marks omitted)); Gross Found., Inc. v. Goldner, No. 12-CV-1496, 2012 WL 6021441, at *11 (E.D.N.Y. Dec. 4, 2012) (“Although the [g]uaranty provides for Kansas law, unjust enrichment is an equitable claim that is outside the scope of the contract’s choice-of-law provision and may be governed ' by the law of a different state.”); Hettinger v. Kleinman, 733 F.Supp.2d 421, 444 (S.D.N.Y.2010) (“[The] [p]laintiffs cite New York law and [the defendants] cite both New Jersey and Florida law with respect to plaintiffs’ unjust enrichment. claim. Although the choice of law clause in the [independent [contractor [a]greement specifies Florida law, extra-contractual claims are outside the scope of contractual choice-of-law provisions.” (citations and internal quotation marks omitted)); Cargill, Inc. v. Sears Petroleum & Transp. Corp., No. 03-CV-580, 2004 WL 3507329, at *16 (N.D.N.Y. Aug. 27, 2004) (“With the exception of the breach of contract claim which ... is subject to Minnesota law because of the choice of law provision contained within the relevant agreement, the ... parties’ common law counterclaims, including for ... unjust enrichment, ... are all governed by New York law.”). If anything can be gleaned from the conflicting case law described above, it is that the more an unjust enrichment claim relates to an enforceable contract, the more likely it is to be considered contractual in nature for the purposes of New York’s choice-of-law analysis. Given the allegations surrounding Plaintiffs’ unjust enrichment claim, this line of" }, { "docid": "3086795", "title": "", "text": "award of punitive damages. Defendants’ arguments that plaintiffs tort claims may not sustain a request for punitive damages as a matter of law are therefore rejected. I.Ninth Claim: Fraud (against Baronow-ski) To prove fraud under New York law, a plaintiff must show that: (1) the defendant made a material false statement, (2) the defendant intended to defraud the defendant thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a result of such reliance. Bridgestone/Firestone Inc., 98 F.3d at 19 (quotations omitted). An action for breach of contract may not be converted into one for fraud merely by alleging that the contracting party never intended to meet his contractual obligation, for this would allow a plaintiff to plead two independent claims, and recover twice, for the same conduct. See, e.g., GSGSB, Inc. v. New York Yankees, 862 F.Supp. 1160, 1177 (S.D.N.Y.1994); New York University v. Continental Ins. Co., 87 N.Y.2d 308, 319-320, 639 N.Y.S.2d 283, 289, 662 N.E.2d 763, 769 (1995). Rather, as the Court of Appeals has explained, [I]n such a situation a plaintiff must either: (i) demonstrate a legal duty separate from the duty to perform under the contract; or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages. Bridgestone/Firestone, Inc., 98 F.3d at 20 (citations omitted). See also Hargrave v. Oki Nursery, Inc., 636 F.2d 897, 898-99 (2d Cir.1980) (“If the only interest at stake is that of holding the defendant to a promise, the courts have said that the plaintiff may not transmogrify the contract claim into one for tort.”). Thus the same acts may independently give rise to actions for both fraud and breach of contract. Whether the First Amended Complaint adequately pleads misrepresentations collateral to the alleged joint venture agreement, however, is a close question. The allegedly false and misleading statements made by Baronowski closely track the terms of the joint venture agreement. See First Amended Complaint at ¶¶ 104-105 (false statements were that plaintiff was Baronowski’s partner, that plaintiff" }, { "docid": "5113075", "title": "", "text": "Inc. v. Cola, 745 F.Supp.2d 588, 619 (E.D.Pa.2010) (noting that under Pennsylvania’s “gist of the action” doctrine, a plaintiff is generally precluded from recovering in tort for claims arising from breach of contract). Defendant maintains that because Plaintiffs have failed to allege the existence of any legal duty arising outside of the obligations contained in the contract, and because the conduct underlying the tort claims falls within the scope of the alleged contractual relationship, Plaintiffs’ tort claims fail as a matter of law. Defendant also argues that, under Ohio law, “[t]here is no separate tort cause of action for breach of good faith that is separate from a breach of contract claim. Rather, good faith is part of a contract claim and does not stand alone.” Northeast Ohio College of Massotherapy v. Burek, 144 Ohio App.3d 196, 204, 759 N.E.2d 869, 875 (Ohio Ct.App.2001) (internal citation and quotation omitted). See also JHE, Inc. v. Southeastern Penn. Transp. Auth., No. 1790, 2002 WL 1018941, at *5-7 (Pa.Com.Pl. May 17, 2002) (noting that Pennsylvania does not recognize a tort claim for bad faith, and that separate causes of action cannot be maintained for breach of contract and breach of the covenant of good faith, “even in the alternative.”). Plaintiffs concede that if there are valid and enforceable contracts, the quasi-contractual claims and tort claims are not viable. Plaintiffs argue, however, that although they believe that the contracts at issue are valid and enforceable, it is not clear at this point whether Defendant concedes this point. In the event that the Court eventually finds that one or more of the contracts is invalid or unenforceable, Plaintiffs have pleaded quasi-contractual claims and tort claims in the alternative. Plaintiffs correctly note that Federal Rule of Civil Procedure 8(d)(3) specifically provides that a party may state as many claims as it has, regardless of consistency. See Concheck v. Barcroft, No. 2:10-cv-656, 2011 WL 3359612, at *8 (S.D.Ohio 2011) (refusing to dismiss quasi-contract claims because if the contract is ultimately deemed unenforceable, plaintiff may be able to succeed on alternate theories of recovery); Jent v. BAC Home" }, { "docid": "4806530", "title": "", "text": "2006 WL 3681144, at *3 (E.D.N.Y. Dec. 11, 2006) (internal quotation marks omitted). “A plaintiff need not attach a copy of the contract to the complaint or quote the contractual provisions verbatim.” Id. (citations omitted). “However, the complaint must at least set forth the terms of the agreement upon which liability is predicated by express reference.” Id. (internal quotation marks and alteration omitted). Here, plaintiff has not specifically identified the contract (or contracts) at issue and has not specified the terms of the agreement that defendant purportedly breached, other than to assert that these “certain contracts” set forth “the commissions and other elements of compensation to be paid to Plaintiff.” (Am. Compl. ¶ 172.) Because plaintiff has failed to plead an essential element of his breach of contract claim, defendants’ motion to dismiss that claim is granted. See Howell, 2006 WL 3681144 at *4; Tray-Wrap, Inc., 2004 WL 2346619 at *4. X. Plaintiff’s Unjust Enrichment Claim To maintain an unjust enrichment claim in New York, a plaintiff must allege “that the defendant received a benefit at the plaintiffs expense and that retention of that benefit would be unjust.” Levion v. Societe Generate, 822 F.Supp.2d 390, 405 (S.D.N.Y.2011). Plaintiff alleges, apparently as an alternative to his breach of contract claim, that defendants “benefitted” from him “by virtue of and in payment and consideration for his loan production services,” and he seeks “restitution” in the form of “all earned commissions due and owing as a result of [plaintiffs] ... loan production services.” (Am. Compl. ¶¶ 180, 181.) Several courts within this Circuit have held that “a plaintiff may not allege that his former employer was ‘unjustly’ enriched at his expense when the employer compensated the plaintiff by paying him a salary.” Levion, 822 F.Supp.2d at 405 (citing Karmilowicz v. The Hartford Fin. Servs. Grp., 2011 WL 2936013, at *12 (S.D.N.Y. July 14, 2011)). Rather, a plaintiff must allege that he performed work that “exceeded the scope of his duties” in his position and, therefore, “his salary did not constitute reasonable value for the services he provided to [his employer].” Id.; see also" }, { "docid": "604946", "title": "", "text": "made regarding the investment of the $4 million and the return on the investment are expressly covered by the FFE agreement, and those representations were either breached by Foxcode Capital or not. As such, they argue that Wen’s tort claims (fraud, fraud in the inducement, conversion, misappropriation, and breach of fiduciary duty) “are simply recast breach of contract claims” that are barred by the gist of the action doctrine. The gist of the action doctrine “forecloses a party’s pursuit of a tort action for the mere breach of contractual duties without any separate or independent event giving rise to the tort.” Skӧld v. Galderma Labs., L.P., 99 F.Supp.3d 585, 600, 2015 WL 1740032, at *9 (E.D.Pa. Apr. 17, 2015) (citations and internal quotation marks omitted). The doctrine bars tort claims: (1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract. eToll, Inc. v. Elias/Savion Advert., Inc., 811 A.2d 10, 19 (Pa.Super.Ct.2002) (citations omitted). The mere existence of a contractual relationship between the parties, however, does not preclude one party from bringing a tort claim against the other. Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79, 104 (3d Cir.2001). In its first foray into an analysis of the gist of the action doctrine — after a long history of predictive federal court and state court litigation on the same, see Skӧld, 99 F.Supp.3d at 601 n. 10, 2015 WL 1740032, at *9 n. 10 (collecting cases) — the Pennsylvania Supreme Court, in Bruno v. Erie Insurance Co., — Pa. -, 106 A.3d 48 (2014), summarized the doctrine’s contours as follows: If the facts of a particular claim establish that the duty breached is one creat ed by the parties by the terms of their contract — i.e., a specific promise to do something that a party would not ordinarily have been" }, { "docid": "4330924", "title": "", "text": "v. Martin, 360 F.Supp.2d 533, 541 (S.D.N.Y.2004) (internal citation and quotation marks omitted). A conversion claim may only succeed, however, if a plaintiff alleges wrongs and damages distinct from those predicated on a breach of contract. See Command Cinema Corp. v. VCA Labs, Inc., 464 F.Supp.2d 191, 199 (S.D.N.Y.2006); Priolo Commc’ns, Inc. v. MCI Telecomms. Corp., 248 A.D.2d 453, 669 N.Y.S.2d 376, 377 (1998) (“The plaintiffs claim alleging conversion merely restates its cause of action to recover damages for breach of contract and does not allege a separate taking. A claim to recover damages for conversion cannot be predicated on a mere breach of contract.”); accord Alliance Group Servs., Inc. v. Grassi & Co., 406 F.Supp.2d 157, 170 (D.Conn.2005); Rolls-Royce Motor Cars, Inc. v. Schudroff, 929 F.Supp. 117, 124 (S.D.N.Y.1996). Thus, “[i]n determining whether a conversion claim is duplicative of a breach of contract claim, courts look both to the material facts upon which each claim is based and to the alleged injuries for which damages are sought.” Physicians Mut. Ins. Co., 2009 WL 855648, at *10 (quoting AD Rendon Commc’ns, Inc. v. Lumina Ams., Inc., No. 04 Civ. 8832(KMK), 2007 WL 2962591, at *5 (S.D.N.Y. Oct. 10, 2007)). Here, the same facts make up the breach of contract and conversion claims. Both allege that SPS violated certain duties and obligations specifically enumerated by the PSA when it serviced the mortgages and sought reimbursement for servicing advances. (See, e.g., FAC ¶ 98) (“[SPS] failed to service the Subject Loans to the standards to which it was contractually obligated. Further, [SPS] was only entitled to recoup legitimate advances to true third party vendors. Instead of doing so, [SPS] engaged in illicit self-dealing in order to boost its profits at the expense of the Securitizations, and thereby at the expense of Owners.”). Moreover, Plaintiffs have not established any conversion damages distinct from the breach of contract claim against SPS. Accordingly, “if Plaintiffs] were to recover under both claims, [they] would in effect be paid twice.” AD Rendon Commc’ns, Inc., 2007 WL 2962591, at *5; see also Physicians Mut. Ins. Co., 2009 WL" }, { "docid": "1762359", "title": "", "text": "dissolve BLB within twelve months of May 1, 1998 and therefore breached plaintiffs employment contract. 2. Breach of Contract and Tort Claims Based on Same Facts Defendants argue that plaintiff cannot allege a claim for breach of contract when the breach of contract claim arises from the same set of facts that constitute plaintiffs tort claims. As a general rule, a “breach of contract claim is not actionable in tort in the absence of special additional allegations of wrongdoing which amount to ‘a breach of a duty distinct from, or in addition to, the breach of contract.’ ” Niagara Mohaivk Power Corp. v. Stone & Webster Engineering Corp., 725 F.Supp. 656, 662 (S.D.N.Y.1989) (quoting North Shore Bottling Co. v. C. Schmidt & Sons, Inc., 22 N.Y.2d 171, 179, 292 N.Y.S.2d 86, 239 N.E.2d 189 (N.Y.1968)) (emphasis in original). “It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated.... This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract.” Clark-Fitzpatrick v. Long Island Rail Road Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 (N.Y.1987) (citations omitted). Therefore, the fact that the same facts serve as the basis of both tort and contract claims can be of no moment. See, e.g., Supra USA Inc. v. Samsung Electronics Co., Ltd., No. 85 Civ. 9696, 1987 WL 19953, at *2 (S.D.N.Y. Nov. 10, 1987); Rodin Properiies-Shore Mall, N.V. v. Ullman, 264 A.D.2d 367, 694 N.Y.S.2d 374 (N.Y.App.Div.1999). This court finds that in this case plaintiff may go forward with her breach of contract claim and her tort claims. Although the breach of contract claim is based upon the same facts underlying plaintiffs tort claims, the breach of contract claim also rests on a theory, independent of plaintiffs tort claims, that the addendum was breached when defendants put aside the BLB project, concocted a for-cause reason for terminating plaintiff, and failed to provide plaintiff with" }, { "docid": "5113074", "title": "", "text": "Claims Defendant also argues that because there is a valid and enforceable written contract, Plaintiffs cannot also maintain actions for breach of implied contract, promissory estoppel, or unjust enrichment. See Cook v. Home Depot U.S.A., Inc., No. 2:06-cv-571, 2007 WL 710220, at *8 (S.D.Ohio Mar. 6, 2007) (“Ohio law does not allow parties to ‘seek damages under quasi-contractual theories of recovery’ such as a claim of unjust enrichment when a contract governs the relationship.”); Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir.1987) (interpreting Pennsylvania law, and holding that a plaintiff cannot recover for unjust enrichment when an express contract governs the relationship between the parties). Likewise, Defendant argues that Plaintiffs’ claims for breach of fiduciary duty, misappropriation of trade secrets, tortious interference with contractual and business relationships, and conversion are barred because “under Ohio law the existence of a contract action generally excludes the opportunity to present the same case as a tort claim.” Wolfe v. Continental Cas. Co., 647 F.2d 705, 710 (6th Cir.1981). See also Brown & Brown, Inc. v. Cola, 745 F.Supp.2d 588, 619 (E.D.Pa.2010) (noting that under Pennsylvania’s “gist of the action” doctrine, a plaintiff is generally precluded from recovering in tort for claims arising from breach of contract). Defendant maintains that because Plaintiffs have failed to allege the existence of any legal duty arising outside of the obligations contained in the contract, and because the conduct underlying the tort claims falls within the scope of the alleged contractual relationship, Plaintiffs’ tort claims fail as a matter of law. Defendant also argues that, under Ohio law, “[t]here is no separate tort cause of action for breach of good faith that is separate from a breach of contract claim. Rather, good faith is part of a contract claim and does not stand alone.” Northeast Ohio College of Massotherapy v. Burek, 144 Ohio App.3d 196, 204, 759 N.E.2d 869, 875 (Ohio Ct.App.2001) (internal citation and quotation omitted). See also JHE, Inc. v. Southeastern Penn. Transp. Auth., No. 1790, 2002 WL 1018941, at *5-7 (Pa.Com.Pl. May 17, 2002) (noting that Pennsylvania does not recognize" }, { "docid": "604945", "title": "", "text": "Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009). Second, a court should determine whether the remaining well-pled facts sufficiently show that the plaintiff “has a ‘plausible claim for relief.’ ” Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). The Court must construe the facts and draw inferences in the light most favorable to the plaintiff. Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins. Co. (U.S.A.), 768 F.3d 284, 290 (3d Cir.2014). However, “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement. to relief.’ ” Great Western Mining, 615 F.3d at 177 (quoting Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955 (internal quotation marks omitted)). At bottom, the question is not whether the claimant “will ultimately prevail ... but whether his complaint [is] sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530, 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233 (2011). III. DISCUSSION The Defendants contend that any representations they made regarding the investment of the $4 million and the return on the investment are expressly covered by the FFE agreement, and those representations were either breached by Foxcode Capital or not. As such, they argue that Wen’s tort claims (fraud, fraud in the inducement, conversion, misappropriation, and breach of fiduciary duty) “are simply recast breach of contract claims” that are barred by the gist of the action doctrine. The gist of the action doctrine “forecloses a party’s pursuit of a tort action for the mere breach of contractual duties without any separate or independent event giving rise to the tort.” Skӧld v. Galderma Labs., L.P., 99 F.Supp.3d 585, 600, 2015 WL 1740032, at *9 (E.D.Pa. Apr. 17, 2015) (citations and internal quotation marks omitted). The doctrine bars tort claims: (1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; or (4) where the tort claim essentially duplicates a breach of contract claim or" }, { "docid": "1980867", "title": "", "text": "violated.” Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 58 (2d Cir.2012) (citing Clark-Fitzpatrick v. Long Island R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987)). “Such a ’legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent on the contract.” Id. (quoting Clark-Fitz-patrick, 521 N.Y.S.2d 653, 516 N.E.2d at 194). “Where an independent tort duty is present, a plaintiff may maintain both tort and contract claims arising out of the same allegedly wrongful conduct.” Id. (citing Hargrave v. Old Nursery, Inc., 636 F.2d 897, 898-99 (2d Cir.1980)). “If ... the basis of a party’s claim is a breach of solely contractual obligations, such that the plaintiff is merely seeking to obtain the benefit of the contractual bargain through an action in tort, the claim is precluded as duplicative.” Id. (citing N.Y. Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283, 662 N.E.2d 763, 770 (1995)). Plaintiffs bring two negligence claims and two breach of fiduciary duty claims. Plaintiffs’ fourth and fifth causes of action allege that BNYM breached its duty of care. The fourth cause of action alleges that BNYM breached its fiduciary duty “to exercise its contractually conferred rights and powers in good faith and to bring all available claims for the benefit of the Trusts and the Certificateholders.” (ComplJ 532.) The fifth cause of action alleges that, after the Events of Default occurred, BNYM negligently failed to notify investors of the originators and sponsors’ breaches of their obligations, enforce sellers’ obligation to cure, and enforce ser-vicers’ obligations. (CompLU 539-42.) These are essentially the same allegations that give rise to Plaintiffs’ breach of contract claims. See Fixed Income Shares: Series M, 2015 WL 5244707, at *13. Therefore, Plaintiffs’ fourth and fifth causes of action for breach of fiduciary duty and negligence are dismissed as du-plicative of the breach of contract claim. Id. (dismissing substantively identical causes of action as duplicative of breach of contract claim). Plaintiffs’ third and sixth causes of action allege conflict of interest" }, { "docid": "20395610", "title": "", "text": "out a claim for conversion. Id. (quotation omitted). The two elements of conversion are “(1) plaintiffs possessory right or interest in the property and (2) defendant’s dominion over the property or interference with it, in derogation of plaintiffs rights.” Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 50, 827 N.Y.S.2d 96, 860 N.E.2d 713 (2006) (citations omitted). Plaintiff alleges that it has a right to possession of the Liquisolid Patents under the Agreements, and that Defendants have exercised dominion over the property in derogation of those rights. Bolton and Spireas argue that the conversion claim against them merely duplicates the Plaintiffs contract claims because Plaintiff has failed to allege wrongful behavior independent of their alleged breaches of contract which would entitle Plaintiff to special damages. (Spireas Mem. at 21-22.) All Defendants object that Plaintiffs conversion claims are untimely under the statute of limitations. (Spireas Mem. at 21; Bolton Mem. at 10-11.) 1. Availability of Special Damages Under New York law, “[i]t is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated.” Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987); see also Rockefeller Univ. v. Tishman Construction Corp., 240 A.D.2d 341, 659 N.Y.S.2d 460 (1st Dep’t 1997) (plaintiff cannot maintain a cause of action in tort for conduct that is governed by a contractual relationship when “the identical contractual benefit of the bargain recovery is sought”). Consequently, where a contractual relationship exists between the plaintiff and a defendant, a plaintiff may only maintain a tort action for fraud where the plaintiff “(i) demonstrate[s] a legal duty separate from the duty to perform under the contract; or (ii) demonstrate^] a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek[s] special damages that are caused by the misrepresentation and unrecoverable as contract damages.” Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d Cir.1996). The conversion claim is not duplicative of St. John’s contract claims against Bolton" }, { "docid": "17994263", "title": "", "text": "plaintiff seeks to hold the defendant liable in tort, the plaintiff must prove that the defendant breached a duty “independent” of its duties under the contract; otherwise plaintiff is limited to an action in contract. In Clark-Fitzpatrick Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987), the court stated, “[i]t is a well established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated.” Id. at 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 (citations omitted). Similarly, in Apple Records, Inc. v. Capitol Records, Inc., 137 A.D.2d 50, 529 N.Y.S.2d 279 (1st Dep’t 1988), the court explained, “unless the contract creates a relation, out of which relation springs a duty, independent of the mere contract obligation, though there may be a breach of the contract, there is no tort, since there is no duty to be violated.” Id. at 55, 529 N.Y.S.2d 279 (quotation marks and citation omitted). Of course, determining whether one violated such an “independent” duty is a complex task. The New York Court of Appeals has explained that: Between actions plainly ex contractu and those as clearly ex delicto there exists what has been termed a borderland, where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other, and become so nearly coincident as to make their practical separation somewhat difficult. ... [Commentators have described a tort] in general as “a wrong independent of contract.” And yet, it is conceded that a tort may grow out of, or make part of, or be coincident with a contract, and that precisely the same state of facts, between the same parties, may admit of an action either ex con-tractu or ex delicto. In such cases the tort is dependent upon, while at the same time independent of the contract; for if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract. Rich v. New York Cent. &" }, { "docid": "4330923", "title": "", "text": "the same subject matter.”). 7. Negligence The negligence claim against all Defendants does not allege the violation of any legal duty independent of the PSA. “Merely charging a breach of a ‘duty of due care’, employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim.” Clark-Fitzpatrick, Inc., 70 N.Y.2d at 390, 521 N.Y.S.2d 653, 516 N.E.2d 190. Accordingly, like Plaintiffs’ other quasi-contractual claims, these claims are dismissed. 8. Conversion The Complaint charges SPS and the SPS Affiliates with conversion for obtaining “dominion and control over funds through improper means,” including payment for fictitious or overpriced services. (FAC ¶ 147.) Under New York law, to plead a claim of conversion, a plaintiff must establish that “(1) the property subject to conversion is a specific identifiable thing; (2) plaintiff had ownership, possession or control over the property before its conversion; and (3) defendant exercised an unauthorized dominion over the thing in question, to the alteration of its condition or to the exclusion of the plaintiffs rights.” Moses v. Martin, 360 F.Supp.2d 533, 541 (S.D.N.Y.2004) (internal citation and quotation marks omitted). A conversion claim may only succeed, however, if a plaintiff alleges wrongs and damages distinct from those predicated on a breach of contract. See Command Cinema Corp. v. VCA Labs, Inc., 464 F.Supp.2d 191, 199 (S.D.N.Y.2006); Priolo Commc’ns, Inc. v. MCI Telecomms. Corp., 248 A.D.2d 453, 669 N.Y.S.2d 376, 377 (1998) (“The plaintiffs claim alleging conversion merely restates its cause of action to recover damages for breach of contract and does not allege a separate taking. A claim to recover damages for conversion cannot be predicated on a mere breach of contract.”); accord Alliance Group Servs., Inc. v. Grassi & Co., 406 F.Supp.2d 157, 170 (D.Conn.2005); Rolls-Royce Motor Cars, Inc. v. Schudroff, 929 F.Supp. 117, 124 (S.D.N.Y.1996). Thus, “[i]n determining whether a conversion claim is duplicative of a breach of contract claim, courts look both to the material facts upon which each claim is based and to the alleged injuries for which damages are sought.” Physicians Mut. Ins. Co., 2009 WL 855648," }, { "docid": "17994262", "title": "", "text": "of action for tortious interference, a plaintiff must establish that defendant was a ‘third party’ to the contract or business relationship.” Id. at 659. And in Britt/ Paulk Insurance Agency, Inc. v. Vandroff Insurance Agency, Inc., 952 F.Supp. 1575 (N.D.Ga.1996), the court precluded suit by an agent against its principal, stating that “Georgia law requires that a plaintiff show that the defendant is a ‘stranger’ to the business and contractual relations at issue in order to prevail on tortious interference with business and contractual relations claims.” Id. at 1584. Presumably, this requirement is meant to prevent the encroachment of tort into contract disputes. Carvel relies heavily on the fact that this case presents tortious interference claims by parties with whom it had contractual relationships. Although New York courts have not addressed the specific issue of whether tortious interference will lie be tween franchisor and franchisee, they have addressed the more general issue of when a tort will lie between parties to a contract. Where the plaintiff and defendant are parties to a contract, and the plaintiff seeks to hold the defendant liable in tort, the plaintiff must prove that the defendant breached a duty “independent” of its duties under the contract; otherwise plaintiff is limited to an action in contract. In Clark-Fitzpatrick Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987), the court stated, “[i]t is a well established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated.” Id. at 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 (citations omitted). Similarly, in Apple Records, Inc. v. Capitol Records, Inc., 137 A.D.2d 50, 529 N.Y.S.2d 279 (1st Dep’t 1988), the court explained, “unless the contract creates a relation, out of which relation springs a duty, independent of the mere contract obligation, though there may be a breach of the contract, there is no tort, since there is no duty to be violated.” Id. at 55, 529 N.Y.S.2d 279 (quotation marks and citation omitted). Of course, determining whether one" }, { "docid": "5536259", "title": "", "text": "We have held that in a situation where a defendant fails- to disclose an intention not to perform a promise in the future, one of the ways a plaintiff can maintain a fraud claim under New York law is by also demonstrating “a fraudulent misrepresentation collateral or extraneous to the contract.” Bridgestone/Firestone, 98 F.3d at 20; see also Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 510 NY.S.2d 88, 502 N.E.2d 1003 (1986) (refusing to dismiss fraud claim alleging “a misrepresentation of present fact, not of future intent” which misrepresentation was “collateral to, but which was the inducement for the contract” and thus not duplicative of contract claim) (citations and internal quotation marks omitted). However, the non-disclosure of collateral aims, such as those alleged by TVT, do not constitute actionable “fraudulent misrepresentation[s] collateral or extraneous to the contract.” Bridgestone/Firestone, 98 F.3d at 20. Although TVT alleged collateral aims, the aims proved at trial were not distinct fraudulent misrepresentations but, rather, were allegations about defendants’ states of minds used to support the contention that they intended to breach the contract (i.e. the motives for the breach). Thus, the fraudulent concealment claim is insufficiently distinct from the breach of contract claim to be viable. See Contemporary Mission, Inc. v. Bonded Mailings, Inc., 671 F.2d 81, 85 (2d Cir.1982) (holding that “[i]f the only interest involved ... is holding a party to a promise, a plaintiff will not be permitted to transform the contract claim into one for tort.”); Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 389-90, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987) (holding that causes of action sounding in negligence were properly dismissed where plaintiff has not alleged the violation of a legal duty independent of the contract because “[i]t is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract.”). TVT" }, { "docid": "14662143", "title": "", "text": "at any point. See supra I.D., I.E.l.a. Towers retained a contractual right at all times to proceeds received on accounts sold to it by Hunt Health, and this right did not cease upon Towers’ failure to collect. As Towers had a lawful right to the proceeds on the accounts sold to it, and Hunt Health kept those proceeds, plaintiff satisfactorily makes out a claim for conversion. A conversion claim, however, that merely duplicates a breach of contract claim is not actionable. See Richbell Information Services v. Jupiter Partners, 765 N.Y.S.2d 575, 590, 309 A.D.2d 288 (1st Dep’t 2003) (upholding dismissal of conversion claim that “satisfies] the technical elements of that tort” because it was dupli-cative of the contract claims); Wolf v. National Council of Young Israel, 694 N.Y.S.2d 424, 425, 264 A.D.2d 416 (2d Dep’t 1999); 23 N.Y. Jur. Conversion § 20 (2004). “For a conversion claim to succeed in the context of a dispute regarding a contract, the breach of contract must result in some ‘wrong’ that is separately actionable.” Rella, 2004 WL 1418021, at *5 (internal quotations omitted). To determine whether contract and conversion claims are distinct, courts look to the legal authority underlying the claims and the damages claimed in each action. See American Equities Group, Inc. v. Ahava Dairy Prods. Corp., No. 01 Civ. 5207, 2004 WL 870260, at *16 (S.D.N.Y. Apr. 23, 2004); Fabry’s S.R.L. v. IFT Intern., Inc., 02 Civ. 9855, 2003 WL 21203405, at *3 (S.D.N.Y. May 21, 2003) (“A plaintiff must show acts that were unlawful or wrongful as opposed to mere violations of contractual rights.”); New York Racing Assoc., Inc. v. Meganews, Inc., No. 97 Civ. 1091, 2000 WL 307378, at *5 (E.D.N.Y. Mar. 21, 2000) (finding the conversion claim duplicative in part because “it seeks the same damages as are claimed in the contract claim”). Here, the authority upon which plaintiff claims legal ownership of the account proceeds arises from the parties’ agreements, from the same terms upon which plaintiff asserts, and prevails upon, his breach of contract claim. The same wrong underlies each action, namely, Hunt Health’s retention of" }, { "docid": "7950764", "title": "", "text": "in such respect may be in furtherance of the corporate business.” White v. Nat’l Home Prot., Inc., No. 09-cv-4070, 2010 WL 1706195, at *5 (S.D.N.Y. Apr. 21, 2010) (internal citation and quotation marks omitted). As such, if properly pleaded, Plaintiffs can allege a fraud claim against Ross individually. Plaintiffs allege that Ross committed fraud in the inducement by making certain misrepresentations to ensure Plaintiffs purchased Oxysure stock; “Under New York law, a claim for fraud in the inducement requires; (1) a misrepresentation or omission of material fact; (2) which the defendant knew to be false; (3) which the defendant made with the intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff.” Palatkevich v. Choupak, 152 F.Supp.3d 201, 222-23 (S.D.N.Y. 2016)(internal citation and quotation marks omitted). Claims for fraud in the inducement and breach of contract are duplicative when the fraud claim “is premised upon an alleged breach of contractual duties and the supporting allegations do not concern representations which are collateral or extraneous to the terms of the parties’ agreement.” Vorcom Internet Servs., Inc. v. L & H Eng’g & Design LLC, No. 12-CV-2049, 2013 WL 335717, at *4 (S.D.N.Y. Jan. 9, 2013) (citing Bridgestone/Firestone v. Recovery Credit Servs., 98 F.3d 13, 20 (2d Cir. 1996)). “[T]o make out a claim for fraudulent inducement that is sufficiently distinct from a breach of contract claim, a plaintiff must (i) demonstrate a legal duty separate from the duty to perform.under the contract; or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek special damages that are caused by'the misrepresentation; and unrecoverable as. contract damages.” Lorterdan Properties at Ramapo I, LLC v. Watctower Bible & Tract Soc’y of N.Y., Inc., No. 11-cv-3656, 2012 WL 2873648, at *17 (S.D.N.Y. July 10, 2012)(internal citations and quotation marks omitted.) “In sum, fraud in the inducement can be supported by a false statement of present fact, or by a false statement of future intent which concerns a matter collateral to a contract between the parties.” Int’l CableTel Inc. v. Le Groupe Videotron" }, { "docid": "1980866", "title": "", "text": "315(c), section 315(b) does not limit defaults to those Events of Default defined in the Indenture.” HSBC Bank USA, 109 F.Supp.3d at 612. As Plaintiffs have adequately pleaded the occurrence of servicer defaults, they have also adequately pleaded the occurrence of defaults under section 315(b). Moreover, as Plaintiffs argue, the Indentures incorporate the SSAs, which in turn define “Events of Default” as a material breach of the SSAs by the Servicer. (Opp’n at 36.) See also Royal Park Invs. SA/NV v. Bank of New York Mellon, 2016 WL 899320, at *9 (holding plaintiff stated claim under section 315(b) because indenture incorporated servicing agreement, which in turn defined “Event of Default” as servicer defaults). As Plaintiffs have adequately pleaded the occurrence of servicer defaults and that BNYM failed to act prudently, they have also adequately pleaded a claim under section 315(c). C. Negligence and Breach of Fiduciary Duty Claims “Under New York law, a breach of contract will not give rise to a tort claim unless a legal duty independent of the contract itself has been violated.” Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 58 (2d Cir.2012) (citing Clark-Fitzpatrick v. Long Island R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987)). “Such a ’legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent on the contract.” Id. (quoting Clark-Fitz-patrick, 521 N.Y.S.2d 653, 516 N.E.2d at 194). “Where an independent tort duty is present, a plaintiff may maintain both tort and contract claims arising out of the same allegedly wrongful conduct.” Id. (citing Hargrave v. Old Nursery, Inc., 636 F.2d 897, 898-99 (2d Cir.1980)). “If ... the basis of a party’s claim is a breach of solely contractual obligations, such that the plaintiff is merely seeking to obtain the benefit of the contractual bargain through an action in tort, the claim is precluded as duplicative.” Id. (citing N.Y. Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283, 662 N.E.2d 763, 770 (1995)). Plaintiffs bring two negligence claims and two" } ]

[ { "docid": "19713002", "title": "", "text": "just above the ankle. Her doctor described the injury as a “Mangling type injury with multiple lacerations of the foot.” The bone was so severely severed that only some soft tissue held her leg together. Her father came to the scene of the collision and discovered the Buick’s right rear hubcap with human flesh and blood on it. The highway patrolman verified the blood on the hubcap. The wheel cover was designed with the two ornamental blades protruding some three inches from the base of the cover itself. The flippers serve only the purpose of aesthetic design. These spinners or flippers were recessed two and one-eighth inches within the outer perimeter of the car’s body shell. Within the five square feet of the car’s rear wheel well there was no covering or protection from the blades. When the vehicle moved at a speed of 40 m. p. h. the blades revolved at 568 r. p. m. or nine and one-half revolutions per second. Plaintiff’s expert witness, who held a Ph.D. in agricultural engineering and theoretical applied mechanics, testified that the protruding blades moving at high speeds in an unshielded area constituted an unsafe design to persons who might come within their vicinity. Defendant’s design experts testified to the contrary observing that the area was recessed within the body shell of the vehicle and therefore not considered dangerous. Defendant contends that there was insufficient evidence to show that plaintiff’s leg was actually cut by the hubcap in question. Before passing directly on the issues raised here, we feel constrained to restate certain principles relating to motions for directed verdicts. Judge San-born observed in Barnett v. Terminal R. Ass’n of St. Louis, 200 F.2d 893 (8 Cir. 1953), cert, denied, 345 U.S. 956, 73 S.Ct. 938, 97 L.Ed. 1377: “It is safe to say that in a case such as the one before us, it is unwise for a trial judge to direct a verdict at the close of the plaintiff’s evidence. We think that, even though the trial court is of the opinion that the evidence will not support a verdict" } ]

[ { "docid": "3760640", "title": "", "text": "between the claimed unsafe conditions of Shipman’s place of work and the ailments which he suffered can be held sufficient to sustain the jury’s verdict only by the application of an extremely liberal standard. We come then to examine the standards to be applied on motion for directed verdict and on motion for judgment notwithstanding the verdict, and the standard to be applied on motion for new trial and on appellate review of the denial of such a motion. Standard to be Applied on Motion for Directed Verdict and on Motion for Judgment Notwithstanding the Verdict. On the question of whether the court is to look only to the evidence favorable to the party against whom the motion for directed verdict (request for affirmative charge in Alabama) is made, or whether it is to consider all of the evidence, the Alabama courts are firm in their holding that all of the evidence must be considered, though viewed in its most favorable aspect to the party against whom the motion is directed. On the other hand, in a Federal Employer’s Liability Act case, the United States Supreme Court has held that: “It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need lock only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given.” Wilkerson v. McCarthy, 1949, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497. In Alabama a scintilla of evidence of negligence requires submission of the issue to the jury. In Reuter v. Eastern Air Lines, 5 Cir. 1955, 226 F.2d 443, 445, 446, we held that “In diversity cases, therefore, even since Erie, the scintilla of evidence rule prevailing in Alabama and in some other states has no application in the federal courts. “In determining whether there is sufficient evidence to take the case to the jury, a federal judge performs a judicial function and is not a mere automaton. Gunning v. Cooley, 281 U.S. 90, 93, 50 S.Ct. 231," }, { "docid": "11051792", "title": "", "text": "P.2d 1299 (1993), which was filed on October 29, 1993, that there was a judicially created post-sale duty to warn in Kansas and, therefore, TIC had no notice prior to that date that it could be liable in any manner for punitive damages based on a theory of its breach of a post-sale duty to warn. TIC argues that due process requirements are not satisfied if punitive damages are imposed based on a rule of law created after the occurrence of the conduct which gives rise to the punitive damages claim. In support of its argument, TIC relies primarily on TXO Production Corp. v. Alliance Resources Corp., — U.S. —, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993). TXO involved a common-law action for slander of title in the state of West Virginia in which respondents obtained a judgment against petitioner for $19,000.00 in actual damages and $10 million in punitive damages. The Supreme Court granted certiorari to decide whether that punitive damages award violated the Due Process Clause of the Fourteenth Amendment, either because the amount was excessive or because it was the product of an unfair procedure. Throughout the majority of its opinion, the TXO court discusses petitioner’s argument that a $10 million punitive damages award — an award 526 times greater than the actual damages awarded by the jury — was so excessive that it must be deemed an arbitrary deprivation of property without due process of law. The court rejected this argument. Id. at —, 113 S.Ct. at 2722-23. Following this analysis, the court, in the last paragraph of its opinion, summarily disposed of respondent’s argument that the procedure followed in the case to award punitive damages “was unconstitutionally vague” because it “had no notice of the possibility that the award of punitive damages might be divoreed from an award of compensatory damages.” Id. at —, 113 S.Ct. at 2724. The court stated that: In Wells v. Smith, 171 W.Va. 97, 105, 297 S.E.2d 872, 880 (1982), the West Virginia Supreme Court of Appeals held that a defendant could be liable for punitive damages even if the" }, { "docid": "23464111", "title": "", "text": "on other grounds, this subissue is moot. VII Glover cross-appeals the district court’s grant of a directed verdict in favor of defendant BIC on Glover’s claim of strict liability based on a design defect. In the two disputed claims, Glover alleged that the injuries could have been avoided if BIC had (1) increased the clearance between the valve body and the jet so that debris in the body would be less likely to interfere with the movement of the jet; and (2) provided a cap to smother any potential afterburns. The court reviews the propriety of a directed verdict de novo. Redman v. County of San Diego, 942 F.2d 1435, 1439 (9th Cir.1991) (en banc) (quotations omitted), cert. denied, — U.S. -, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992). The court must view the evidence in the light most favorable to the nonmoving party and draw all inferences in favor of that party. Id. A directed verdict should be granted when the evidence permits only one reasonable conclusion as to the verdict. Id. If conflicting inferences may be drawn from the facts, the case must go to the jury. Id. The Oregon courts have observed that charges of defective design in products liability cases create special problems, one of which is “the nature, and necessary proof, of a ‘defect’ in a product which reaches the consumer in precisely the condition intended by the designer/manufacturer.” Wilson v. Piper Aircraft Corp., 282 Or. 61, 65, 577 P.2d 1322, 1325 (1978). “In deciding whether the evidence of defective design is sufficient to make a jury question, a trial court must balance the utility of the risk created by the unsafe feature of the product against the magnitude of the risk.” Green v. Denney, 87 Or.App. 298, 300, 742 P.2d 639, 641 (1987) (citing Roach v. Kononen/Ford Motor Co., 269 Or. 457, 464, 525 P.2d 125, 129 (1974)), rev. denied, 305 Or. 21, 749 P.2d 136 (1988). The court “is to determine, and to weigh in the balance, whether the proposed alternative design has been shown to be practicable.” Wilson, 282 Or. at 68," }, { "docid": "22275821", "title": "", "text": "evidence favorable to the moving party may not be considered, because if it were the court would have to pass on the credibility of that party’s witnesses. The Supreme Court has also stated the same rule: It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given. Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949). In other words, when a motion for directed verdict or for judgment notwithstanding the verdict is made, the court must assume that all of the evidence supporting the party opposing the motion is true, and must, in addition, give that party the benefit of all reasonable inferences drawn from that evidence. The case may be taken from the jury only if no rational jury could find against the moving party on the evidence so viewed. Probably this formulation will result in fewer grants of motions for directed verdict than would result if judges were free to take cases from the jury because of what they view as very strong evidence supporting the moving party. Occasionally verdicts may be returned with which judges strongly disagree. This is a price, we think, worth paying for the jury system, which is enshrined in the Bill of Rights and sanctified by centuries of history. When questions of fact are involved, common sense is usually more important than technical knowledge, and twelve heads are better than one. II. Having determined that our consideration should be limited to evidence which supports the party opposing the motion for directed verdict, we turn now to apply the standard to this case. In an age-discrimination suit, like a suit for sex or race discrimination, the plaintiff can prove his case by showing either direct evidence of discrimination or evidence that the reasons given for the adverse action are a pretext to cloak the discriminatory motive. See Texas Department of Community" }, { "docid": "12795824", "title": "", "text": "that there is no objection to dismissing the Does. Accordingly, the Does are not indispensable parties and served no other purpose than protecting the plaintiffs under California pleading practice. Under these circumstances, the Does should be and are now dismissed, and consequently jurisdiction is proper in this court. See id. at 457. III STANDARD OF REVIEW In determining the propriety of a directed verdict, this court has the same role as the court below. See Shakey’s Inc. v. Covalt, 704 F.2d 426, 430 (9th Cir.1983). A directed verdict is proper if the evidence permits only one reasonable conclusion. Id. The court must examine all the evidence in the light most favorable to the nonmoving party to decide whether there is substantial evidence that could support a finding in favor of that party. See Browne v. McDonnell Douglas Corp., 698 F.2d 370, 371 (9th Cir.1982), cert. denied, 461 U.S. 930, 103 S.Ct. 2092, 77 L.Ed.2d 301 (1983). Federal law guides this determination. Id. IV BAD FAITH CLAIMS Othman’s allegations of bad faith arise primarily in three areas: Globe’s investigation of the fire, Globe’s initial denial of the claim on the basis of Othman’s failure to provide all of the information requested at the examinations, and Globe’s second denial of the claim, with a note that suit was barred because the statute of limitations had run after promising reconsideration. We find that Othman presented enough evidence of bad faith on the part of Globe in respect to the second denial to permit that claim to go to the jury. A. The Duty of Good Faith and Fair Dealing. A covenant of good faith and fair dealing is a part of every insurance contract in California, and requires an insurer to deal in good faith and fairly with its insured in handling an insured’s claim against it. See Gruenberg v. Aetna Insurance Co., 9 Cal.3d 566, 510 P.2d 1032, 1037, 108 Cal.Rptr. 480, 485 (1973). The insurer is obligated to give the interests of the insured at least as much consideration as it gives its own interests and not to withhold payment of" }, { "docid": "23464112", "title": "", "text": "inferences may be drawn from the facts, the case must go to the jury. Id. The Oregon courts have observed that charges of defective design in products liability cases create special problems, one of which is “the nature, and necessary proof, of a ‘defect’ in a product which reaches the consumer in precisely the condition intended by the designer/manufacturer.” Wilson v. Piper Aircraft Corp., 282 Or. 61, 65, 577 P.2d 1322, 1325 (1978). “In deciding whether the evidence of defective design is sufficient to make a jury question, a trial court must balance the utility of the risk created by the unsafe feature of the product against the magnitude of the risk.” Green v. Denney, 87 Or.App. 298, 300, 742 P.2d 639, 641 (1987) (citing Roach v. Kononen/Ford Motor Co., 269 Or. 457, 464, 525 P.2d 125, 129 (1974)), rev. denied, 305 Or. 21, 749 P.2d 136 (1988). The court “is to determine, and to weigh in the balance, whether the proposed alternative design has been shown to be practicable.” Wilson, 282 Or. at 68, 577 P.2d at 1326. “When the question of practicability cannot be properly weighed solely on the basis of inference and common knowledge, the evidence must show that the suggested alternative is ‘not only feasible but also practicable in terms of cost and the over-all design and operation of the product’.” Wood v. Ford Motor Co., 71 Or.App. 87, 91, 691 P.2d 495, 498 (1984) (quoting Wilson, 282 Or. at 69, 577 P.2d at 1327), rev. denied, 298 Or. 773, 697 P.2d 556 (1985). Generally, “plaintiffs prima facie case of a defect must show more than the technical possibility of a safer design.” Wilson, 282 Or. at 68, 577 P.2d at 1326. In Wilson, plaintiffs, representatives of victims of a plane crash, claimed that if the manufacturer had supplied a different type of engine in the plane, the crash likely would not have occurred. Id. at 69, 577 P.2d at 1327. In support of this contention, plaintiffs produced evidence showing this different engine was available and could have been included by the defendant in the plane." }, { "docid": "23464120", "title": "", "text": "the plaintiff. (Tr. at 1112-18.) . In her petition for rehearing, Glover argues the evidence of prior fires at the Weaver homé is inadmissible under Fed.R.Evid. 404(b). Although she raises this issue on appeal, we can locate no place in the record where the district court addressed the admissibility of this evidence under any rule other than Fed.R.Evid. 403. Therefore, we leave to the district court on retrial the question of admissibility of this evidence under Fed.R.Evid. 404(b) or any other rule. . Cross-appellant Glover argues that “[i]n passing upon the sufficiency of the evidence to submit an issue to the jury, the appellate court need only look to the evidence and reasonable inferences which tend to support the case of a litigant against whom a directed verdict has been given. Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949).” The Ninth Circuit has consistently held that \"[a] court must examine all the evidence in the light most favorable to the nonmoving party to decide whether there is 'substantial evidence’ that could support a finding for the nonmoving party.\" Browne v. McDonnell Douglas Corp., 698 F.2d 370, 371 (9th Cir.1982), cert. denied, 461 U.S. 930, 103 S.Ct. 2092, 77 L.Ed.2d 301 (1983) (emphasis supplied). . The court’s example of a case in which practicability can be weighed solely on the basis of inference and common knowledge is Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir.1972), in which the plaintiff was injured by purely ornamental blades on the hubcaps on the car with which the plaintiff collided. The court pointed out that \"the jury could find from that fact alone that it would have been practicable to supply hubcaps of a safer design.” Wilson, 282 Or. at 68, 577 P.2d at 1326. . Glover does not appeal the dismissal of her claim based on the omission of an \"O-ring” in the construction of the lighter. . BIC also contends the jury's award of punitive damages violates BIC’s due process rights under the Fourteenth Amendment. We are aware the Supreme Court recently granted certiorari" }, { "docid": "17667878", "title": "", "text": "case during her hospital confinement. The motions were made “upon the ground and for the reason that upon the facts and the law plaintiff has shown no right to relief”, and were apparently granted under Rule 41(b). Since this was a jury trial, a motion for a directed verdict under Rule 50 would have been the more appropriate procedure; and more especially so by reason of the requirement of Rule 41(b) that where as here the dismissal operates as an adjudication upon the merits, “the court shall make findings as provided in Rule 52 (a).” No findings appear in the record before us [See: Fed.R.Civ.Proc., Rules 41(b), 50 and 52(a), 28 U.S.C.A.; 5 Moore, Federal Practice, p. 1042 (2d ed. 1951).] The question presented at bar, however, is the same irrespective of which motion led to the judgment of dismissal. Cf. Galloway v. United States, 1943, 319 U.S. 372, 395, 63 S.Ct. 1077, 87 L.Ed. 1458. Upon appeal from a judgment of dismissal entered upon the close of a plaintiff’s case-in-chief, the appellant is entitled to the benefit of every inference which can reasonably be drawn from the evidence viewed in the light most favorable to the claim or cause of action asserted. Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Schnee v. Southern Pacific Co., 9 Cir., 1951, 186 F.2d 745, 746; Graham v. Atchison, T. & S. F. Ry. Co., 9 Cir., 1949, 176 F.2d 819, 823; McAlinden v. St. Maries Hospital Ass’n, 1916, 28 Idaho 657, 666, 156 P. 115, 117; Black v. City of Lewiston, 1887, 2 Idaho 276, 281, 13 P. 80, 82. As said in Wilkerson v. McCarthy, 1949 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497: “It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case * * Viewing the evidence at bar in that light, the following facts were established upon appellant’s case-in-chief: Appellant, a woman" }, { "docid": "23464091", "title": "", "text": "this area of strict liability covering both manufacturing defects and design defects is the law in Oregon. Therefore, we reject BIC’s arguments to the contrary. II BIC argues the judgment against BIC on plaintiffs negligence claim should be reversed because plaintiff failed to introduce sufficient evidence establishing the requisite standard of care. The court reviews the directed verdict de novo, using the same standard applied by the district court. Matter of Yagman, 796 F.2d 1165, 1171 (9th Cir.1986), cert. denied, 484 U.S. 963, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987). Under that standard, a directed verdict is proper if the evidence permits only one reasonable conclusion as to the verdict. Id. Therefore, the court must examine all the evidence in the light most favorable to the plaintiffs to decide whether there is substantial evidence that could support a finding in favor of plaintiffs. Id. To establish a duty, the plaintiff need only prove facts which establish either the existence of a statute, status or relationship, or, in the absence of one of these, conduct by the defendant which “unreasonably created a foreseeable risk to a protectable interest of the kind of harm that befell the plaintiff.” Fazzolari v. Portland School District No. 1J, 303 Or. 1, 17, 734 P.2d 1326, 1336 (1987). Once plaintiff produces sufficient evidence to establish such a relationship, the existence of that relationship creates, defines and limits the defendant’s duty. Id. “If a specific affirmative duty is imposed by statute, status or relationship, an analysis based on that specific duty is ... appropriate.” Fuhrer v. Gearhart By The Sea, 306 Or. 434, 438, 760 P.2d 874, 877 (1988). In this case Glover produced evidence which showed BIC had manufactured the lighter found at the scene of the accident, and plaintiffs decedent had been the user of the lighter. Therefore, Glover produced substantial evidence establishing a manufacturer/user relationship between BIC and plaintiffs decedent. This relationship created a legal duty in BIC to exercise “due care to avoid foreseeable harm to the users of his product.” State ex rel. Western Seed Prod. Corp. v. Campbell, 250 Or. 262," }, { "docid": "22275820", "title": "", "text": "Credit Corp., 679 F.2d 138, 140 (8th Cir.1982); Hanson v. Ford Motor Co., 278 F.2d 586, 596 (8th Cir.1960) (Blackmun, J.). The question arises whether the court is permitted to consider evidence that is unfavorable to the party opposing the motion. While the second statement quoted above can be read to allow consideration of the evidence supporting the moving party, our precedents predominantly support the general proposition that only the evidence favoring the nonmoving party (usually, as here, the plaintiff) should be considered. We have recently stated flatly that on a motion for directed verdict “[a]ny evidence produced by the prevailing party must be disregarded.” Koch Security v. Secretary of the Department of Health, Education & Welfare, 590 F.2d 260, 261 (8th Cir.1978) (citations omitted). And several times we have said that the court is not to consider questions of credibility when deciding whether to grant a directed verdict. E.g., Banks v. Koehring Co., 538 F.2d 176, 178 (8th Cir.1976); Barclay v. Burlington Northern, Inc., supra, 536 F.2d at 267. That statement necessarily implies that evidence favorable to the moving party may not be considered, because if it were the court would have to pass on the credibility of that party’s witnesses. The Supreme Court has also stated the same rule: It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given. Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949). In other words, when a motion for directed verdict or for judgment notwithstanding the verdict is made, the court must assume that all of the evidence supporting the party opposing the motion is true, and must, in addition, give that party the benefit of all reasonable inferences drawn from that evidence. The case may be taken from the jury only if no rational jury could find against the moving party on the evidence so viewed. Probably" }, { "docid": "23464119", "title": "", "text": "to establish fault on the part of the defendant, plaintiff must prove by a preponderance of the evidence that defendant was at fault in at least one of the ways alleged which was a cause of the injury or damage to the decedent. Under the law strict liability for a defective product, the defendant is liable for harm caused by a product if the defendant was engaged in the business of manufacturing a product and the product was in a defective condition which was unreasonably dangerous to the consumer for the consumer's property when the product left the defendant's hand; and three, the product was intended from and did reach the consumer without substantial change in the condition in which it was manufactured. A manufacturer of a product that is in an unreasonably dangerous defective condition is liable for harm caused by the product even though the manufacturer exercised all possible care.... In considering punitive damages, you must first determine whether the defendant was guilty of wanton misconduct which was a cause of damage to the plaintiff. (Tr. at 1112-18.) . In her petition for rehearing, Glover argues the evidence of prior fires at the Weaver homé is inadmissible under Fed.R.Evid. 404(b). Although she raises this issue on appeal, we can locate no place in the record where the district court addressed the admissibility of this evidence under any rule other than Fed.R.Evid. 403. Therefore, we leave to the district court on retrial the question of admissibility of this evidence under Fed.R.Evid. 404(b) or any other rule. . Cross-appellant Glover argues that “[i]n passing upon the sufficiency of the evidence to submit an issue to the jury, the appellate court need only look to the evidence and reasonable inferences which tend to support the case of a litigant against whom a directed verdict has been given. Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949).” The Ninth Circuit has consistently held that \"[a] court must examine all the evidence in the light most favorable to the nonmoving party to decide whether there is 'substantial" }, { "docid": "5544816", "title": "", "text": "in this case measured up to the standard of care for physicians in the community. This is manifestly not a case in which the jury should have been allowed to infer negligence from admissions that the treatment methods employed involved some hazard to the patient. Affirmed. . There is some doubt about the magnitude of the risk since Roy’s extreme reaction to the Hypaque injection was apparently the first recorded instance of such a reaction to aortography in a child under nine years of age. Transcript at 651, 1094 (testimony of Dr. Randolph). . Dr. Randolph asserted that in his experience the 9-10 ce. dosage that he administered to Roy during each test represented the “upper limits of safe dosage.” Transcript at 1130 (emphasis supplied). VAN PELT, Senior District Judge, dissenting: I have no serious problem in affirming the directed verdict in favor of the hospital and Dr. Coleman. My dissent is based upon my conclusion that the case should have been submitted to a jury as to the negligence of Dr. Randolph. A brief statement as to the legal principles involved is appropriate. It is clear that a doctor does not guarantee results. However, negligence of a doctor can be shown either by expert testimony indicating that the community standards were not followed by him or by proven facts or by inferences which by common knowledge may be drawn from the facts. The calling of a medical expert is unnecessary where the facts prove negligence, or where you can infer negligence from the proven facts. See, e. g., Hill v. Gonzalez, 454 F.2d 1201 (8th Cir. 1972). In Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949), the Court said, “that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given.” With this in mind, I turn to the evidence. Roy C. Haven was a child of two and one-half years" }, { "docid": "3378900", "title": "", "text": "case, in finding for the United States, the judge found that Poston had removed the guy wire from the anchor prior to the accident. This variance is claimed by the appellant to be fatal. We disagree that the trial judge based his decision to grant the motion for a directed verdict upon the fact that the guy wire had not been removed. While he did state at one point that the posture of the case at that time was that the plaintiff had not removed the wire from the anchor, his further discussion indicates that he found Okano not to be liable whether or not the wire had been removed. This was perfectly proper since the plaintiff had attempted to prove as part of his case that the wire had not been removed, and thus the trial judge was duty-bound to consider whether or not the jury could find liability if that fact were true. See, e. g., Shafer v. Mountain States Tel. & Tel. Co., 335 F.2d 932 (9th Cir. 1964). Moreover, we find that the trial judge did not improperly remove factual issues from the jury by rendering a directed verdict. In our review we must consider the evidence in its strongest light in favor of the party against whom the verdict was rendered, and must give him the advantage of every fair and reasonable intendment that the evidence can justify, even though contrary inferences might reasonably be drawn. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 93 L.Ed. 497 (1949); CaseSwayne Co. v. Sunkist Growers, Inc., 369 F.2d 449 (9th Cir. 1966); Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1965); Girardi v. Gates Rubber Co. Sales Div., Inc., 325 F.2d 196, 202 (9th Cir. 1963). Viewing the evidence in that light, the plaintiff still completely failed to show any facts which would give rise to a duty owed by Okano to him. There were no facts upon which a jury could reasonably infer that there" }, { "docid": "8589950", "title": "", "text": "Miller himself understood, the jury instructions were erroneous. Viewing the instructions as a whole, we hold that they did not fairly and correctly cover the substance of the applicable law because first, they did not allow the jury to determine when the duty to disclose ended, and second, they required the jury to consider the understanding and knowledge of a reasonable person, rather than Miller’s actual knowledge and understanding. Accordingly, we are required to reverse. III. DIRECTED VERDICT We must consider Ruth Miller’s argument that she was entitled to a directed verdict, because if she is correct there will be no need for a retrial despite the erroneous jury instructions. In determining whether a directed verdict is appropriate, we apply federal law even though this is a diversity case. Browne v. McDonnell Douglas Corp., 698 F.2d 370, 371-72 (9th Cir.1982) (per curiam), cert. denied, 461 U.S. 930, 103 S.Ct 2092, 77 L.Ed.2d 301 (1983). A directed verdict can be granted if the evidence permits only one reasonable conclusion as to the verdict. Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir.1985). All of the evidence must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of that party. Id. After so reviewing the record, we simply cannot say that it would be impossible for a reasonable jury to find first, that the duty to disclose continued until payment of the premium, or second, that Fred Miller realized prior to December 4 that there had been a material change in his health. Accordingly, the district court did not err in refusing to grant Ruth Miller a directed verdict. IV. CONCLUSION The district court did not err in denying Ruth Miller’s motion for a directed verdict, but because it incorrectly stated the law in the jury instructions regarding the duty to disclose, we reverse the judgment of the district court and remand the matter for a new trial. As a result, we need not address the appellant’s remaining contentions. REVERSED AND REMANDED. . While Republic refers to these events as \"hallucinations,”" }, { "docid": "23464113", "title": "", "text": "577 P.2d at 1326. “When the question of practicability cannot be properly weighed solely on the basis of inference and common knowledge, the evidence must show that the suggested alternative is ‘not only feasible but also practicable in terms of cost and the over-all design and operation of the product’.” Wood v. Ford Motor Co., 71 Or.App. 87, 91, 691 P.2d 495, 498 (1984) (quoting Wilson, 282 Or. at 69, 577 P.2d at 1327), rev. denied, 298 Or. 773, 697 P.2d 556 (1985). Generally, “plaintiffs prima facie case of a defect must show more than the technical possibility of a safer design.” Wilson, 282 Or. at 68, 577 P.2d at 1326. In Wilson, plaintiffs, representatives of victims of a plane crash, claimed that if the manufacturer had supplied a different type of engine in the plane, the crash likely would not have occurred. Id. at 69, 577 P.2d at 1327. In support of this contention, plaintiffs produced evidence showing this different engine was available and could have been included by the defendant in the plane. Id. The court, however, ruled plaintiffs had failed to meet the requirements of the prima facie case, “because there was no evidence of the effect that substitution of a fuel-injection engine in the airplane would have on its ‘cost, economy of operation, maintenance requirements, overall performance, or safety in respects other than susceptibility to [the alleged cause' of the accident]’.” Appel v. Standex Int’l Corp., 62 Or.App. 208, 211, 660 P.2d 686, 688 (quoting Wilson, 282 Or. at 70, 577 P.2d at 1327), rev. denied, 295 Or. 446, 668 P.2d 382 (1983). The Oregon Court of Appeals has held this requirement does not require “plaintiff in opposing a summary judgment motion ... to produce specific evidence of the exact dollar impact on vehicle cost, economy of operation or maintenance requirements to be entitled to a jury determination.” Wood, 71 Or.App. at 92, 691 P.2d at 498-99. Under these standards, Glover did not present sufficient evidence to create a jury question on the design defect claims. Supporting the alternative design involving a cap on the lighter," }, { "docid": "23464121", "title": "", "text": "evidence’ that could support a finding for the nonmoving party.\" Browne v. McDonnell Douglas Corp., 698 F.2d 370, 371 (9th Cir.1982), cert. denied, 461 U.S. 930, 103 S.Ct. 2092, 77 L.Ed.2d 301 (1983) (emphasis supplied). . The court’s example of a case in which practicability can be weighed solely on the basis of inference and common knowledge is Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir.1972), in which the plaintiff was injured by purely ornamental blades on the hubcaps on the car with which the plaintiff collided. The court pointed out that \"the jury could find from that fact alone that it would have been practicable to supply hubcaps of a safer design.” Wilson, 282 Or. at 68, 577 P.2d at 1326. . Glover does not appeal the dismissal of her claim based on the omission of an \"O-ring” in the construction of the lighter. . BIC also contends the jury's award of punitive damages violates BIC’s due process rights under the Fourteenth Amendment. We are aware the Supreme Court recently granted certiorari in TXO Production Corp, v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870, cert. granted, — U.S. -, 113 S.Ct. 594, 121 L.Ed.2d 532 (1992), in which a similar due process challenge to an award of punitive damages is presented. We need not address the propriety of the punitive damage award in this case, however, because we reverse the general and punitive damage awards and remand the case for a new trial." }, { "docid": "12795823", "title": "", "text": "if jurisdiction is based solely on diversity. See Garter-Bare Co. v. Munsingwear, Inc., 622 F.2d 416, 423 (9th Cir.1980); Fifty Associates v. Prudential Insurance Co. of America, 446 F.2d 1187, 1191 (9th Cir.1970); Molnar v. National Broadcasting Co., 231 F.2d 684 (9th Cir. 1956). However, had the case been filed originally in federal court, the court could allow the jurisdictional defect to be cured. Accordingly, the district court could have had proper original jurisdiction. A court may dismiss non-diverse defendants in order to preserve jurisdiction if they are not indispensable parties. Inecon Agricorporation v. Tribal Farms, Inc., 656 F.2d 498, 500 (9th Cir.1981). Although the district court never formally dismissed the Doe defendants, it could have, and this court may now do so if warranted. Ross v. International Brotherhood of Electrical Workers, 634 F.2d 453, 456-57 (9th Cir. 1980). When proceedings began in the district court, Othman was not aware of the existence of any actual Doe defendant. No actual persons as substitutes for Does were ever joined, and Othman has stated to this court that there is no objection to dismissing the Does. Accordingly, the Does are not indispensable parties and served no other purpose than protecting the plaintiffs under California pleading practice. Under these circumstances, the Does should be and are now dismissed, and consequently jurisdiction is proper in this court. See id. at 457. III STANDARD OF REVIEW In determining the propriety of a directed verdict, this court has the same role as the court below. See Shakey’s Inc. v. Covalt, 704 F.2d 426, 430 (9th Cir.1983). A directed verdict is proper if the evidence permits only one reasonable conclusion. Id. The court must examine all the evidence in the light most favorable to the nonmoving party to decide whether there is substantial evidence that could support a finding in favor of that party. See Browne v. McDonnell Douglas Corp., 698 F.2d 370, 371 (9th Cir.1982), cert. denied, 461 U.S. 930, 103 S.Ct. 2092, 77 L.Ed.2d 301 (1983). Federal law guides this determination. Id. IV BAD FAITH CLAIMS Othman’s allegations of bad faith arise primarily in three" }, { "docid": "13618236", "title": "", "text": "the jury; 2) assume that all conflicts in the evidence were resolved by the jury in [Morgan’s] favor; 3) assume as proved all facts which [Morgan’s] evidence tends to prove; 4) give [Morgan] the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and 5) affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it. Gilkerson, 770 F.2d at 136. This court, in an opinion authorized by Judge Arnold, discussed in detail the application of this standard in Dace v. ACF Industries, 722 F.2d 374 (8th Cir.1983), also an age discrimination case. We noted that “our precedents predominantly support the general proposition that only the evidence favoring the nonmoving party (usually, as here, the plaintiff) should be considered.” Id. at 376. We further stated that “evidence favorable to the moving party may not be considered, because if it were the court would have to pass on the credibility of that party’s witnesses.” Id. As the Supreme Court has declared, “in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given.” Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949). This careful analysis by Judge Arnold in Dace has been followed by this court on numerous occasions. See Brooks v. Woodline Motor Freight, 852 F.2d 1061, 1063 (8th Cir.1988); Taylor v. Cochran, 830 F.2d 900, 902 (8th Cir.1987), cert. denied, 485 U.S. 1009, 108 S.Ct. 1476, 99 L.Ed.2d 704 (1988); Glismann v. AT & T Technologies, 827 F.2d 262, 265 (8th Cir.1987). Thus, our task is to apply this standard of review to determine whether the evidence supports submission of the age discrimination issue to the jury. Both parties presented evidence at trial which is totally irrelevant to the age discrimination issue. In truth, the record as a whole contains relatively little discussion of the age issue but instead" }, { "docid": "22141439", "title": "", "text": "but to acts which, because of their alleged frequency and connection to other acts sexual in nature, could be deemed pervasive enough to constitute a hostile environment. The standard for whether such an environment exists has been expressly defined — in quintessential jury terms' — as an environment that a reasonable person would find hostile or abusive. Instead of viewing the evidence tending to disprove the claim, the Supreme Court has told us that, “in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case.” Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 93 L.Ed. 497 (1949). As Judge Arnold of the Eighth Circuit paraphrased this standard: In other words, when a motion for directed verdict or for judgment not withstanding the verdict is made, the court must assume that all of the evidence supporting the party opposing the motion is true, and must, in addition, give that party the benefit of all reasonable inferences drawn from that evidence. The case may be taken from the jury only if no rational jury could find against the moving party on the evidence so viewed. Probably this formulation will result in fewer grants of motions for directed verdict than .would result if judges were free to take cases from the jury because of what they view as very strong evidence supporting the moving party. Occasionally verdicts may be returned with which judges strongly disagree. This is a price, we think, worth paying for the jury system, which is enshrined in the Bill of Rights and sanctified by centuries of history. Dace v. ACF Indus., Inc., 722 F.2d 374, 376-77 (8th Cir.1993) (footnote omitted). Mendoza’s testimony, viewed in the light most favorable to her and with all reasonable inferences drawn in her favor, was that on a daily basis, she had to work in an atmosphere where the plant’s highest ranking executive was always after her. In 79 pages of transcript, Mendoza detailed the conduct of her supervisor throughout the year" }, { "docid": "3760641", "title": "", "text": "in a Federal Employer’s Liability Act case, the United States Supreme Court has held that: “It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need lock only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given.” Wilkerson v. McCarthy, 1949, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497. In Alabama a scintilla of evidence of negligence requires submission of the issue to the jury. In Reuter v. Eastern Air Lines, 5 Cir. 1955, 226 F.2d 443, 445, 446, we held that “In diversity cases, therefore, even since Erie, the scintilla of evidence rule prevailing in Alabama and in some other states has no application in the federal courts. “In determining whether there is sufficient evidence to take the case to the jury, a federal judge performs a judicial function and is not a mere automaton. Gunning v. Cooley, 281 U.S. 90, 93, 50 S.Ct. 231, 74 L.Ed. 720. He must determine, ‘not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it.’ Improvement Co. v. Munson, 14 Wall. 442, 448; see Railway Express Agency v. Mallory, 5 Cir., 168 F.2d 426, 427. ‘The requirement is for probative facts capable of supporting, with reason, the conclusion expressed in the verdict.’ Myers v. Reading Co., 331 U.S. 477, 485, 67 S.Ct. 1334, 1339, 91 L.Ed. 1615; see Thomas v. Atlantic Coast Line R. Co., 5 Cir., 223 F.2d 1, 4.” The continued validity of that holding is subject to serious doubt if the standards applied in FELA cases must also be applied in diversity cases. As far back as 1952, we held that even in diversity cases federal courts are forbidden by the Seventh Amendment to re-examine any fact tried by a jury otherwise than according to the rules of the common law. If (and this is an important “if”) the standards of review applied" } ]

[ { "docid": "19287898", "title": "", "text": "Id. at 220-23. This Court held that under these circumstances, Bell-Atlantic’s refusal to transfer the debtor’s telephone number to another location did not constitute an act to “exercise control” over property of the debtor’s estate in violation of § 362(a)(3), and that therefore the imposition of sanctions pursuant to § 362(h) was not warranted. A critical aspect of that holding was this Court’s view that the explicit purpose of § 362(a)(3) is to “maintain the status quo as to the relationship between the debtor, creditors, and other parties-in-interest.” Id. at 228. In the matter at bar, § 362(a)(3) serves its intended purpose by locking Chrysler and Debtor into the positions they maintained as of the date this bankruptcy case was commenced. In this way, the status quo is maintained until such time as the parties’ respective rights in the vehicle, under the Bankruptcy Code and applicable nonbankruptcy law, can be determined by this Court. Accordingly, this Court holds that where a secured creditor repossesses a Chapter 13 debtor’s vehicle prior to the petition date, that creditor does not violate § 362 of the Bankruptcy Code by refusing to return the vehicle to the debtor’s possession, and is not obligated to return the vehicle to the debtor until such time as the debtor provides adequate protection of the creditor’s interest in the vehicle. In so holding, the Court expressly adopts the holding in the decision of In re Young, and declines to follow the decisions in other jurisdictions which have held to the contrary. See, e.g., Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773 (8th Cir.1989); In re Sharon, 200 B.R. 181 (Bankr.S.D.Ohio 1996); General Motors Acceptance Corp. v. Ryan, 183 B.R. 288 (M.D.Fla.1995). The pivotal issue to be decided in adjudicating Debtor’s demand for return of the vehicle is the provision of adequate protection. See In re Young, 193 B.R. 620, 625 (Bankr.D.D.C.1996). As discussed in In re Young, in order for the debtor to prevail upon debtor’s request for , return of the vehicle, debtor must provide to the creditor adequate protection for the potential harm" } ]

[ { "docid": "8747028", "title": "", "text": "Alberto also runs counter to the strong trend of decisions from our sister Circuits. For example, the Seventh Circuit has bluntly ruled that “a plain reading of the Bankruptcy Code’s provisions, the Supreme Court’s decision in [Whiting Pools ], and various practical considerations require that a creditor immediately return a seized asset in which a debtor has an equity interest to the debtor’s estate upon his filing of Chapter 13 bankruptcy.” Thompson, 566 F.3d at 700; see also Knaus, 889 F.2d at 775. Bankruptcy Appellate Panels from other Circuits agree. E.g., Unified People’s Fed. Credit Union v. Yates (In re Yates), 332 B.R. 1, 7 (10th Cir. BAP 2005); TranSouth Fin. Corp. v. Sharon (In re Sharon), 234 B.R. 676, 682 (6th Cir. BAP 1999); Abrams v. Sw. Leasing & Rental Inc. (In re Abrams), 127 B.R. 239, 243 (9th Cir. BAP 1991). Only the Eleventh Circuit has adopted a contrary approach, and those decisions have largely relied on readings of state law with regard to the relative legal property interests of debtor and secured creditor after a lawful repossession. See Bell-Tel Fed. Credit Union v. Kalter (In re Kalter), 292 F.3d 1350, 1356-60 (11th Cir.2002) (applying Florida law); Charles R. Hall Motors, Inc. v. Lewis (In re Lewis), 137 F.3d 1280, 1284-85 (11th Cir.1998) (applying Alabama law). In our view, the majority rule adheres more faithfully to the text of the Bankruptcy Code and the reasoning of Whiting Pools. In addition, sound policy supports the majority’s reading of the statutory text: The primary goal of reorganization bankruptcy is to group all of the debt- or’s property together in his estate such that he may rehabilitate his credit and pay off his debts; this necessarily extends to all property, even property lawfully seized pre-petition. An asset actively used by a debtor serves a greater purpose to both the debtor and his creditors than an asset sitting idle on a creditor’s lot. Thompson, 566 F.3d at 702 (citations omitted) (emphasis in original). We therefore join the majority of other Circuits to have addressed this issue and conclude that section 362 requires" }, { "docid": "1945343", "title": "", "text": "violates section 362(a)(3) of the Bankruptcy Code. Accord In re Yates, 332 B.R. at 5; In re Sharon, 234 B.R. at 682; In re Abrams, 127 B.R. 239, 241-43 (9th Cir. BAP 1991); In re Knaus, 889 F.2d 773 (8th Cir.1989). Here, GMAC exercised control over Thompson’s vehicle when it refused to return it to the bankruptcy estate upon request. C. The Issue of “Adequate Protection” Does Not Stay a Creditor’s Obligation to Return the Seized Asset to the Bankruptcy Estate There is no debate that a debtor must provide a secured creditor with adequate protection of its interests in the seized asset if the creditor requests such protection. Under 11 U.S.C. § 363(e), “on request of an entity that has an interest in property used, sold, or leased, or proposed to be used, sold, or leased, by the trustee, the court, with or without a hearing, shall prohibit or condition such use, sale, or lease as is necessary to provide adequate protection of’ the creditor’s interest. The issue in controversy is: whether (1) the creditor must return the asset to the bankruptcy estate and then seek adequate protection in court; or, whether (2) the creditor may retain possession of the asset placing the onus on the debtor to bring an action for turnover before the bankruptcy court in a separately filed adversary proceeding. The majority of district courts in Illinois, as well as several district courts in other jurisdictions, have followed the precedent set forth in In re Nash, 228 B.R. 669 (Bankr.N.D.Ill.1999) and In re Spears, 223 B.R. 159 (Bankr.N.D.Ill.1998), which hold that a creditor need not return seized property to a debtor’s estate absent adequate protection of its interests. These decisions reason that requiring immediate turnover would force the creditor into an untenable position — having to turn over an asset in which the creditor has an interest without being adequately assured that its value will be retained. They further reason that since the purpose of the Bankruptcy Code’s stay provision is to maintain the status quo, the car should be kept by the party that had" }, { "docid": "18519915", "title": "", "text": "automobile. This court finds such interest could have been protected by an order of this court after the filing of a proper action. Matter of Endres, 12 B.R. at 406. The 1983 Whiting Pools decision obviously preceded the 1984 Amendments and there fore could not, arid does not, contain an analysis of the “exercise control” language added to § 362(a)(3). Similarly, Whiting Pools could not have considered the 1987 addition of paragraph (d) to Bankruptcy Rule 4001. The majority of courts have interpreted § 362(a)(3) to mean that any postpetition retention of a debtor’s property violates the automatic stay and is sanctionable. See Knaus v. Concordia Lumber Co., Inc. (In re Knaus), 889 F.2d 773 (8th Cir.1989); In re Abrams, 127 B.R. 239 (9th Cir. BAP1991); General Motors Acceptance Corp. v. Ryan (In re Ryan), 183 B.R. 288 (M.D.Fla.1995); Carr v. Security Savings & Loan Association, 130 B.R. 434 (D.N.J.1991); In re Coats, 168 B.R. 159 (Bankr.S.D.Tex.1993); In re Holman, 92 B.R. 764 (Bankr.S.D.Ohio 1988); In re Carlsen, 63 B.R. 706 (Bankr.C.D.Cal.1986). Even after the 1984 Amendments, a minority of courts have reached the opposite conclusion and concluded instead that § 362(a)(3) mandates affirmative action on the part of the debtor to provide “adequate protection” satisfactory to the creditor in order obtain the return of estate property seized prepetition. See In re Young, 193 B.R. 620 (Bankr.D.Dist.Col.1996); In re Deiss, 166 B.R. 92 (Bankr.S.D.Tex.1994); In re Najafi, 154 B.R. 185, 194-95 (Bankr.E.D.Pa.1993); In re Richardson, 135 B.R. 256 (Bankr.E.D.Tex.1992). At the outset, the court notes that its interpretation of the post-1984 Amendment version of § 362(a)(3), in conjunction with the overall structure of the Code, is most consistent with the conclusion reached by the majority of courts to consider the issue. Both lines of cases cite Whiting Pools as support for their respective, but conflicting, positions. In an effort to explain, if not resolve, the conflict, this court has undertaken an analysis of that decision. In Whiting Pools, the IRS seized, prepetition, the tangible personal property of Whiting Pools, Inc. (\"Whiting”) pursuant to a levy and distraint provision of the" }, { "docid": "1945342", "title": "", "text": "Amendments and Federal Judgeship Act of 1984 to include as prohibited conduct “exercising control” over any asset belonging to the bankruptcy estate. Pub.L. No. 98-353, 1984 U.S.C.C.A.N. (98 Stat.) 371. Although Congress did not provide an explanation of that amendment, In re Young, 193 B.R. at 623, the mere fact that Congress expanded the provision to prohibit conduct above and beyond obtaining possession of an asset suggests that it intended to include conduct by creditors who seized an asset pre-petition. See In re Del Mission Ltd., 98 F.3d 1147, 1151 (9th Cir.1996); In re Javens, 107 F.3d 359, 368 (6th Cir. 1997). In fact, one court has gone as far as saying that “[wjithholding possession of property from a bankruptcy estate is the essence of ‘exercising control’ over possession” because it prevents the debtor from achieving beneficial use of the estate’s property. In re Sharon, 234 B.R. 676, 682 (6th Cir. BAP 1999). For these reasons, we find that the act of passively holding onto an asset constitutes “exercising control” over it, and such action violates section 362(a)(3) of the Bankruptcy Code. Accord In re Yates, 332 B.R. at 5; In re Sharon, 234 B.R. at 682; In re Abrams, 127 B.R. 239, 241-43 (9th Cir. BAP 1991); In re Knaus, 889 F.2d 773 (8th Cir.1989). Here, GMAC exercised control over Thompson’s vehicle when it refused to return it to the bankruptcy estate upon request. C. The Issue of “Adequate Protection” Does Not Stay a Creditor’s Obligation to Return the Seized Asset to the Bankruptcy Estate There is no debate that a debtor must provide a secured creditor with adequate protection of its interests in the seized asset if the creditor requests such protection. Under 11 U.S.C. § 363(e), “on request of an entity that has an interest in property used, sold, or leased, or proposed to be used, sold, or leased, by the trustee, the court, with or without a hearing, shall prohibit or condition such use, sale, or lease as is necessary to provide adequate protection of’ the creditor’s interest. The issue in controversy is: whether (1) the" }, { "docid": "6776013", "title": "", "text": "control” clause of § 362(a)(3) was added by the Bankruptcy Amendments and Federal Judgeship Act of 1984. Pub.L. No. 98-353, 1984 U.S.C.C.A.N. (98 Stat.) 371. Congress did not provide an explanation of that amendment. In re Young, 193 B.R. 620, 623 (Bankr.D.C.1996). The Ninth Circuit BAP has interpreted this amendment as broadening the scope of § 362(a)(3) to proscribe the mere knowing retention of estate property. Abrams v. Southwest Leasing & Rental Inc. (In re Abrams), 127 B.R. 239, 241-43 (9th Cir. BAP 1991) (failure to return repossessed car after receiving notice of Chapter 7 filing constituted a violation of the automatic stay). In dicta, this circuit has accepted that interpretation. Chugach, 23 F.3d at 246. We now adopt the reasoning of Abrams and Chugach, and hold that the knowing retention of estate property violates the automatic stay of § 362(a)(3). 11 U.S.C. § 542(a) provides that an entity in possession of estate property “shall” deliver such property to the trustee. This is a mandatory duty arising upon the filing of the bankruptcy petition. Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir.1989). Thus, “[wjithout doubt, ‘a creditor’s knowing retention of property of the estate constitutes a violation of § 362(a)(3).” Chugach 23 F.3d at 246 (quoting Abrams, 127 B.R. at 242); accord Knaus, 889 F.2d at 775 (“The failure to [turn over], regardless of whether the original seizure was lawful, constitutes a prohibited attempt to ‘exercise control over the property of the estate’ in violation of the automatic stay.”); Carlsen v. IRS (In re Carlsen), 63 B.R. 706, 711 (Bankr.C.D.Cal.1986) (failure of IRS to return funds received pursuant to a levy after receiving notice violated automatic stay). These cases emphasize the underlying purpose of the automatic stay, which is to alleviate the financial strains on the debtor. See, e.g., Knaus, 889 F.2d at 775; see also Utah State Credit Union v. Skinner (In re Skinner), 90 B.R. 470 (D.Utah 1988), aff'd, 917 F.2d 444 (10th Cir.1990). To effectuate the purpose of the automatic stay, the onus to return estate property is placed upon the" }, { "docid": "23135288", "title": "", "text": "creditor cannot violate the automatic stay by withholding possession of estate property until the debtor obtains a court order for adequate protection and turnover: 11 U.S.C. § 542(a) provides that an entity in possession of estate property “shall” deliver such property to the trustee. This is a mandatory duty arising upon the filing of the bankruptcy petition. Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir.1989). Thus, “[w]ithout doubt, ‘a creditor’s knowing retention of property of the estate constitutes a violation of § 362(a)(3).” Chugach, 23 F.3d at 246 (quoting Abrams, 127 B.R. at 242); accord Knaus, 889 F.2d at 775 (“The failure to [turn over], regardless of whether the original seizure was lawful, constitutes a prohibited attempt to ‘exercise control over the property of the estate’ in violation of the automatic stay.”); Carlsen v. IRS (In re Carlsen), 63 B.R. 706, 711 (Bankr.C.D.Cal.1986) (failure of IRS to return funds received pursuant to a levy after receiving notice violated automatic stay). These cases emphasize the underlying purpose of the automatic stay, which is to alleviate the financial strains on the debtor. See, e.g., Knaus, 889 F.2d at 775; see also Utah State Credit Union v. Skinner (In re Skinner), 90 B.R. 470 (D.Utah 1988), aff'd, 917 F.2d 444 (10th Cir.1990). To effectuate the purpose of the automatic stay, the onus to return estate property is placed upon the possessor; it does not fall on the debtor to pursue the possessor. [Abrams v. Southwest Leasing & Rental, Inc. (In re Abrams), 127 B.R. 239, 243 (9th Cir. BAP 1991) ]. [I]f persons who could make no substantial adverse claim to a debtor’s property in their possession could, without cost to themselves, compel the debtor or his trustee to bring suit as a prerequisite to returning the property, the powers of a bankruptcy court and its officers to collect the estate for the benefit of creditors would be vastly reduced. [Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir. 1989) ].... “[T]he case law and the legislative history of § 362 indicate" }, { "docid": "12792530", "title": "", "text": "relevant part that a bankruptcy petition “operates as a stay ... of ... any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3). Below, the bankruptcy court held that “[t]he failure to return the Trucks to [Mr. Cowen] post-petition constituted a continuing violation of the stay”; specifically, Defendants “violated § 362(a)(3) of the Bankruptcy Code.” (App. Vol. II at 252.) As the district court noted, the bankruptcy court applied what appears to be the majority rule: “that the act of passively holding onto an asset constitutes ‘exercising control’ oyer it, and such action violates section 362(a)(3) of the Bankruptcy Code.” Thompson v. Gen. Motors Acceptance Corp., 566 F.3d 699, 703 (7th Cir. 2009); see also Weber v. SEFCU (In re Weber), 719 F.3d 72, 81 (2d Cir. 2013), California Emp’t Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1151 (9th Cir. 1996), Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir. 1989), Unified People’s Fed. Credit Union v. Yates (In re Yates), 332 B.R. 1, 4 (10th Cir. BAP 2005); but see United States v. Inslaw, 932 F.2d 1467, 1474 (D.C. Cir. 1991). Defendants disagree with this interpretation of § 362(a)(3), and we agree with Defendants. The majority rule seems driven more by “practical considerations,” Weber, 719 F.3d at 80, and “policy considerations,” Thompson, 566 F.3d at 703, than a faithful adherence to the text. But “[o]ur interpretation of the Bankruptcy Code starts where all such inquiries must begin: with the language of the statute itself.” Ransom v. FIA Card Servs., N.A, 562 U.S. 61, 69, 131 S.Ct. 716, 178 L.Ed.2d 603 (2011) (internal quotation marks omitted). In this case, it is also where the inquiry ends, “for where, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” Frieouf v. United States (In re Frieouf), 938 F.2d 1099, 1102-03 (10th Cir. 1991). Here again is § 362(a)(3), in relevant part:" }, { "docid": "23135289", "title": "", "text": "stay, which is to alleviate the financial strains on the debtor. See, e.g., Knaus, 889 F.2d at 775; see also Utah State Credit Union v. Skinner (In re Skinner), 90 B.R. 470 (D.Utah 1988), aff'd, 917 F.2d 444 (10th Cir.1990). To effectuate the purpose of the automatic stay, the onus to return estate property is placed upon the possessor; it does not fall on the debtor to pursue the possessor. [Abrams v. Southwest Leasing & Rental, Inc. (In re Abrams), 127 B.R. 239, 243 (9th Cir. BAP 1991) ]. [I]f persons who could make no substantial adverse claim to a debtor’s property in their possession could, without cost to themselves, compel the debtor or his trustee to bring suit as a prerequisite to returning the property, the powers of a bankruptcy court and its officers to collect the estate for the benefit of creditors would be vastly reduced. [Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir. 1989) ].... “[T]he case law and the legislative history of § 362 indicate that Congress did not intend to place the burden on the bankruptcy estate to absorb the expense of potentially multiple turnover actions, at least not without providing a means to recover damages sustained as a consequence thereof.” Abrams, 127 B.R. at 243. Del Mission Ltd., 98 F.3d at 1151-52. More recently, the Court of Appeals for the Ninth Circuit affirmed in pertinent part the BAP’s decision in Colorirán. In Colorirán, the Ninth Circuit BAP observed: A creditor who possesses property of the estate on the date the bankruptcy petition is filed has an obligation to turn that property over to the debtor or to the trustee.... [T]he onus to return estate property is place upon the possessor. ... .... A creditor who requires possession in order to achieve or maintain perfection has the right to file a motion for relief from the stay and request adequate protection such that its lien rights are preserved. However, the creditor must tender the goods or face sanctions for violation of the stay. The creditor has a right to" }, { "docid": "12196037", "title": "", "text": "which, in turn, prohibited a creditor from conditioning the return of the vehicle on the debtor providing what it considered to be adequate protection. A creditor who felt that it was not adequately protected had to, instead, first return the property, and then file a motion before the bankruptcy court to receive adequate protection. Id. at 683-84. Other decisions, involving an affirmative duty to turnover over estate property, generally have these same attributes: the property at issue was tangible collateral (in many instances a vehicle); ownership by the debtor of the property was not in dispute; and the creditor’s affirmative duty to turnover the property was trig gered by § 542(a). Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir.1989) (creditor’s failure to voluntarily turn over merchandise lawfully seized prepetition constituted a violation of the automatic stay.); STMIMA Corp. v. Carrigg (In re Carrigg), 216 B.R. 303, 305 (1st Cir. BAP 1998) (creditor violated stay where, once learning of bankruptcy, it attempted to transfer title of securitized vehicle); Abrams v. Southwest Leasing & Rental Inc. (In re Abrams), 127 B.R. 239, 241-43 (9th Cir.BAP1991) (failure to return repossessed car after receiving notice of Chapter 7 filing constituted a violation of the automatic stay); In re Jackson, 251 B.R. 597, 601 (Bankr.D.Utah 2000) (upon being advised of debtor’s bankruptcy, creditor’s refusal to return to Chapter 13 debtor a motor vehicle that it had seized prepetition was an attempt to “exercise of control over property of the estate,” in violation of automatic stay). Such attributes, however, are not altogether present in the situation presented in this matter, where a taxing authority is processing a debtor’s tax refund. These differences, as now explained, make it difficult to construe the Defendant’s implementation of the V-Freeze in the Debtors’ case as a per se violation of the § 362(a)(3). First, those courts, such as in In re Sharon, which found a stay violation when a creditor refused a reasonable demand from the debtor to have the property returned, did so on the basis that a creditor’s obligation for turnover under" }, { "docid": "11204174", "title": "", "text": "of a vehicle has occurred prepetition, but the vehicle has not yet been sold, a Chapter 13 debtor retains a sufficient interest in the vehicle so that turnover may be appropriate. National City Bank v. Elliott (In re Elliott), 214 B.R. 148, 151 (6th Cir. BAP 1997); American Honda Finance Corp. v. Littleton (In re Littleton), 220 B.R. 710, 715 (Bankr.M.D.Ga.1998); In re Fitch, 217 B.R. 286, 290 (Bankr.S.D.Cal.1998); Mattheiss v. Title Loan Express (In re Mattheiss), 214 B.R. 20, 32 (Bankr.N.D.Ala.1997); Turner v. DeKalb Bank (In re Turner), 209 B.R. 558, 562 (Bankr.N.D.Ala.1997); In re Sharon, 200 B.R. 181, 187 (Bankr.S.D.Ohio 1996); In re Pluta, 200 B.R. 740, 744 (Bankr.D.Mass.1996); In re Young, 193 B.R. 620, 621 (Bankr.D.D.C.1996); Karr v. General Motors Acceptance Corp. (In re Karr), 129 B.R. 498, 502 (Bankr.S.D.Ohio 1991); Leverette v. NCNB South Carolina (In re Leverette), 118 B.R. 407, 409 (Bankr.D.S.C.1990); In re Bingham, 116 B.R. 541, 543 (Bankr.N.D.Ohio 1990); Wallace v. G.M.A.C. (In re Wallace), 102 B.R. 114, 116 (Bankr.S.D.Ohio 1989). See also Pileckas v. Marcucio, 156 B.R. 721, 725 (N.D.N.Y.1993) (vehicle part of estate where creditor had failed to perfect its security interest). In addition, in cases where the issue litigated is whether a creditor has violated the automatic stay by refusing to turn over a vehicle repossessed prepetition, courts have observed that the vehicle is property of the estate. See General Motors Acceptance Corp. v. Ryan, 183 B.R. 288 (M.D.Fla.1995); Carr v. Security Sav. & Loan Ass’n, 130 B.R. 434 (D.N.J.1991); Massey v. Chrysler Financial Corp. (In re Massey), 210 B.R. 693 (Bankr.D.Md.1997); Brown v. Joe Addison, Inc. (In re Brown), 210 B.R. 878 (Bankr.S.D.Ga.1997); Brooks v. World Omni (In re Brooks), 207 B.R. 738 (Bankr.N.D.Fla.1997); Deiss v. Southwest Recovery, U.S. (In re Deiss), 166 B.R. 92 (Bankr.S.D.Tex.1994); In re Richardson, 135 B.R. 256 (Bankr.E.D.Tex.1992). Under the Uniform Commercial Code (“UCC”) as adopted in most states, after repossession, the debtor’s interest in the vehicle is a right to redeem the vehicle. Where a bankruptcy court orders that a secured creditor turn over a repossessed vehicle, a Chapter 13 debtor may modify" }, { "docid": "7516836", "title": "", "text": "98 F.3d at 1151 (“To effectuate the purpose of the automatic stay, the onus to return the estate property is placed on upon the possessor; it does not fall on the debtor to pursue the possessor.”). Rather, the language of Whiting suggests that, as long as the debt- or retains an interest in the repossessed property and the property is capable of being pulled into the estate by a provision under the Bankruptcy Code, that property is included in the reorganization estate at the commencement of bankruptcy proceedings. See Whiting, 462 U.S. at 204-05,103 S.Ct. 2309 (commenting that the scope of the reorganization estate under 11 U.S.C. § 541 “is intended to include in the estate any property made available to the estate by other provisions of the Bankruptcy Code”). The undersigned believes that this interpretation of Whiting is shared by the majority of Circuit Courts of Appeal that have grappled with this issue. See Thompson v. Gen. Motors Acceptance Corp., LLC, 566 F.3d 699, 703 (7th Cir. 2009) (holding that “the act of passively holding onto an asset” constitutes “exercising control” over the asset, which is proscribed in 11 U.S.C. § 362[a]); In re Yates, 332 B.R. 1, 4-5 (10th Cir. BAP 2005) (“This Court holds that the [creditor] violated the automatic stay by refusing to turn over the GMC after [the debtor] filed her bankruptcy petition.”); In re Sharon, 234 B.R. 676, 681 (6th Cir. BAP 1999) (“Possession of the [debtor’s car was property of the Chapter 13 estate from the moment of the petition.”); In re Del Mission, 98 F.3d at 1151 (holding that, pursuant to 11 U.S.C. § 542(a), an entity that has possession of any property that is a part of the reorganization estate is required to “deliver such property to the trustee ... upon the filing of the bankruptcy petition”); In re Knaus, 889 F.2d 773, 775 (8th Cir.1989) (“We fail to see any distinction between a failure to return property taken before the stay and a failure to return property taken after the stay. In both cases the law clearly requires turnover.... [and" }, { "docid": "7514748", "title": "", "text": "court that the company would not hire an attorney to represent Town & Country. At that time the court urged Ms. Jacobs to employ counsel for Town & Country and informed her that a corporation could not proceed on a pro se basis. Despite the court's efforts, Town & Country was not represented at trial. Ms. Jacobs, however, was permitted to testify on the company’s behalf. . The debtors' plan treats Town & Country’s claim as fully secured despite Ms. Jacob’s testimony that the truck has zero N.A.D.A. value. . See California Employment Dev. Dept. v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1151 (9th Cir.1996); Knaus v. Concordia Lumber Co., Inc. (In re Knaus), 889 F.2d 773, 775 (8th Cir.1989); Stmima Corp. v. Carrigg (In re Carrigg), 216 B.R. 303, 305 (1st Cir. BAP 1998); Abrams v. Southwest Leasing & Rental Inc. (In re Abrams), 127 B.R. 239, 241-43 (9th Cir. BAP 1991); Carr v. Security Sav. & Loan Assoc., 130 B.R. 434, 438 (D.N.J. 1991); In re Sharon, 200 B.R. 181, 187 (Bankr.S.D.Ohio 1996), aff'd, 234 B.R. 676 (6th Cir. BAP 1999); In re Belcher, 189 B.R. 16, 18 (Bankr.S.D.Fla.1995); Brooks v. World Omni (In re Brooks), 207 B.R. 738, 741 (Bankr.N.D.Fla.1997). . See Gouveia v. IRS (In re Quality Health Care), 215 B.R. 543, 572-78 (Bankr.N.D.Ind.1997), appeal denied, remanded, 228 B.R. 412 (N.D.Ind.1998); Brown v. Joe Addison, Inc. (In Matter of Brown), 210 B.R. 878, 884 (Bankr.S.D.Ga.1997); Massey v. Chrysler Fin. Corp. (In re Massey), 210 B.R. 693, 696 (Bankr.D.Md.1997); In re Young, 193 B.R. 620, 621 (Bankr.D.Dist.Col.1996); Deiss v. Southwest Recovery (In re Deiss), 166 B.R. 92, 94 (Bankr.S.D.Tex.1994); In re Richardson, 135 B.R. 256, 259 (Bankr.E.D.Tex.1992). Cf. Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995) (holding a pre-petition administrative freeze on a bank account does not constitute a violation of stay). . 11 U.S.C. § 362(h) provides: \"An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may" }, { "docid": "19458182", "title": "", "text": "Courts of Appeals advises that a creditor violates the automatic stay when it fails to affirmatively and immediately return qualifying property of the debtor that was seized pre-petition. Weber v. SEFCU (In re Weber ), 719 F.3d 72 (2d Cir. 2013) ; Thompson v. Gen. Motors Acceptance Corp., LLC, 566 F.3d 699 (7th Cir. 2009) ; Cal. Emp't Dev. Dep't. v. Taxel (In re Del Mission ), 98 F.3d 1147 (9th Cir. 1996) ; Knaus v. Concordia Lumber Co. (In re Knaus ), 889 F.2d 773 (8th Cir. 1989). These courts interpret the 1984 addition to the Bankruptcy Code to broaden the scope of the automatic stay to require affirmative action. The minority position, on the other hand, has only been followed in the Tenth and District of Columbia Circuit Court of Appeals. This position finds no violation of the automatic stay as long as the creditor merely maintains the status quo in effect at the time of the automatic stay. WD Equip., LLC v. Cowen (In re Cowen ), 849 F.3d 943 (10th Cir. 2017) ; United States v. Inslaw, Inc., 932 F.2d 1467 (D.C. Cir. 1991). The minority position interprets the 1984 addition to the Bankruptcy Code to reach out to previously unaddressed actions to exercise control that do not result in actual possession. This District, according to the Bankruptcy Court, has followed the minority position for the past twenty years. Appellant argues in her brief that the Bankruptcy Court is incorrect, and that New Jersey courts \"have uniformly followed the majority rule,\" citing In re Sussex SkyDive, LLC, No. 14-30236-ABA, 2016 WL 10516018, 2016 Bankr. LEXIS 1862 (Bankr. D.N.J. Apr. 27, 2016) and In re Stamper, No. 03-49235, 2008 WL 724237, 2008 Bankr. LEXIS 733 (Bankr. D. N.J. Mar. 17, 2008). As the Bankruptcy Court explained in its Opinion, this characterization is incorrect. Both In re Sussex SkyDive, LLC and In re Stamper involve wrongful post-petition action not maintenance of the status quo. In re Sussex SkyDive, LLC concerned a landlord who refused to allow debtor to retrieve an airplane. 2016 WL 10516018, at *4-5, 2016 Bankr." }, { "docid": "12196036", "title": "", "text": "year claim, and solely because it had a prior year tax claim, it blocked the operation of the automated system and blocked the automated issuance of the refund. (Doc. 197, at pgs. 2-3). Support for the Debtors’ position, that turnover of estate property is immediately required upon reasonable demand, can be found in the decision rendered by the Bankruptcy Appellate Panel for the Sixth Circuit in Tran-South Fin. Corp. v. Sharon (In re Sharon), 234 B.R. 676, 682 (6th Cir.BAP1999). In In re Sharon, the Court found that a creditor, who had legally repossessed a debtor’s car prepetition, is under an affirmative duty to return the car once a proper demand for the property’s return is made. Id. A creditor who fails to comply with this duty, according to the Court, willfully violates the automatic stay of § 362(a)(3), and thus is liable for statutory damages. Id. at 687-88. A necessary component of this decision was the Court’s application of the turnover provision of § 542(a), and the Court’s conclusion that the provision was self-executing which, in turn, prohibited a creditor from conditioning the return of the vehicle on the debtor providing what it considered to be adequate protection. A creditor who felt that it was not adequately protected had to, instead, first return the property, and then file a motion before the bankruptcy court to receive adequate protection. Id. at 683-84. Other decisions, involving an affirmative duty to turnover over estate property, generally have these same attributes: the property at issue was tangible collateral (in many instances a vehicle); ownership by the debtor of the property was not in dispute; and the creditor’s affirmative duty to turnover the property was trig gered by § 542(a). Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir.1989) (creditor’s failure to voluntarily turn over merchandise lawfully seized prepetition constituted a violation of the automatic stay.); STMIMA Corp. v. Carrigg (In re Carrigg), 216 B.R. 303, 305 (1st Cir. BAP 1998) (creditor violated stay where, once learning of bankruptcy, it attempted to transfer title of securitized vehicle); Abrams v." }, { "docid": "4064869", "title": "", "text": "vast majority of courts ruling on this issue. See Knaus v. Concordia Lumber Co., Inc. (In re Knaus), 889 F.2d 773 (8th Cir. 1989); Tran-South Fin. Corp. v. Sharon (In re Sharon), 234 B.R. 676 (6th Cir. BAP 1999); Expeditors Int’l of Washington, Inc. v. Colortran, Inc. (In re Colortran, Inc.), 210 B.R. 823 (9th Cir. BAP 1997), aff’d in relevant part, vacated in part, 165 F.3d 35 (9th Cir.1998) (unpublished); In re Jackson, 251 B.R. 597 (Bankr.D.Utah 2000) (citing cases). . Knaus, 889 F.2d at 775. . United States v. Whiting Pools, Inc., 462 U.S. 198, 206-07, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (\"In effect, § 542(a) grants to the estate a possessory interest in certain property of the debtor that was not held by the debtor at the commencement of reorganization proceedings.”). . 11 U.S.C. § 362(d) (2005). . 11 U.S.C. § 542(a) (2005). . See In re Anthem Communities/RBG, LLC, 267 B.R. 867, 870-71 (Bankr.D.Colo.2001); In re Siciliano, 167 B.R. 999, 1009-10 (Bankr.E.D.Pa.1994); In re Wolsky, 53 B.R. 751, 756 (Bankr.D.N.D.1985) (quoting First Nat’l Bank of Denver v. Turley, 705 F.2d 1024 (8th Cir. 1983)). . See, e.g., In re Wolsky, 53 B.R. at 756. . 11 U.S.C. § 542(a) (2005). Section 363(b) allows the trustee to use, sell, or lease property of the estate. . 11 U.S.C. § 542(a) (2005); see Taoka v. State of Ohio, Dept. of Health (In re Floro Nursing Home, Inc.), 64 B.R. 43, 45 (Bankr. N.D.Ohio 1986) (holding a debtor’s revoked nursing license is of inconsequential value so long as the debtor cannot revive the revocation). But see Camacho v. United States, 190 B.R. 895, 901 (D.Alaska 1995) (holding a debtor’s interest in encumbered dividends where the debtor lacks any equitable title to the property is not of inconsequential value so long as ownership of the property is subject to bona fide dispute). . See 11 U.S.C. § 362(g) (2005); see also In re Wolsky, 53 B.R. at 756. . TranSouth Financial Corp. v. Sharon (In re Sharon), 234 B.R. 676, 682 (6th Cir. BAP 1999) (holding that \"possession of" }, { "docid": "7132425", "title": "", "text": "to unilaterally determine the amount, type and sufficiency of adequate protection. It is the duty of the court, not the privilege of the creditor, to determine what adequate protection is appropriate. 2. Violation of the Automatic Stay. The Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 355 (the “1984 Amendment”) extended the scope of the automatic stay to specifically include any exercise of control over property of the estate. The 1984 Amendment added the second clause of § 362(a)(3) which states: “(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; ”. In finding that a creditor violated the automatic stay by not returning property after the filing of the bankruptcy petition, the Eighth Circuit in Knaus v. Concordia Lumber Company, Inc., 889 F.2d 773 (8th Cir.1989) states at 775 that: The duty to turn over the property is not contingent upon any predicate violation of the stay, any order of the bankruptcy court, or any demand by the creditor, [citations omitted]. Rather, the duty arises upon the filing of the bankruptcy petition. The failure to fulfill this duty, regardless of whether the original seizure was lawful, constitutes a prohibited attempt to “exercise control over the property of the estate” in violation of the automatic stay. The 1984 Amendment to § 362(a)(3) “made it clear that post-petition control over estate property is a violation of the stay.” In re Abrams, 127 B.R. 239, 242 (9th Cir. BAP 1991). “Withholding possession of property from a bankruptcy estate is the essence of ‘exercising control’ over possession.” In re Sharon, 234 B.R. 676, 682 (6th Cir. BAP 1999). Section 542 provides the right to the return of estate property, while § 362(h) provides the remedy for the failure to do so. A creditor’s knowing retention of property of the estate constitutes a violation of § 362(a)(3). Del Mission, 98 F.3d at 1151 citing In re Chugach Forest Prod., Inc., 23 F.3d 241 (9th Cir.1994). The failure to turn over estate property, whether" }, { "docid": "4064868", "title": "", "text": "of these options. Y. Conclusion The Bankruptcy Court’s Judgment is AFFIRMED. . All future statutory references in the text are to title 11 of the United States Code. . 28 U.S.C. §§ 158(a), (b)(1), (c)(1) (2005). . See Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); Smith v. Revie (In re Moody), 817 F.2d 365 (5th Cir.1987). . Diviney v. NationsBank of Texas, N.A. (In re Diviney), 225 B.R. 762, 769 (10th Cir. BAP 1998); Barnett v. Edwards (In re Edwards), 214 B.R. 613, 618 (9th Cir. BAP 1997). . 11 U.S.C. § 362(a)(3) (2005). . Id. . Black's Law Dictionary 267 (Abridged 7th ed.2000). . 11 U.S.C. § 542(a) (2005). . 193 B.R. 620 (Bankr.D.D.C.1996). . Id. at 624 (quoting Dewsnup v. Timm, 502 U.S. 410, 419, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) (further quotation omitted)). . Id. . Capital Factors, Inc. v. Empire for Him, Inc. (In re Empire for Him, Inc.), 1 F.3d 1156 (11th Cir.1993). . Today’s holding is in accordance with the vast majority of courts ruling on this issue. See Knaus v. Concordia Lumber Co., Inc. (In re Knaus), 889 F.2d 773 (8th Cir. 1989); Tran-South Fin. Corp. v. Sharon (In re Sharon), 234 B.R. 676 (6th Cir. BAP 1999); Expeditors Int’l of Washington, Inc. v. Colortran, Inc. (In re Colortran, Inc.), 210 B.R. 823 (9th Cir. BAP 1997), aff’d in relevant part, vacated in part, 165 F.3d 35 (9th Cir.1998) (unpublished); In re Jackson, 251 B.R. 597 (Bankr.D.Utah 2000) (citing cases). . Knaus, 889 F.2d at 775. . United States v. Whiting Pools, Inc., 462 U.S. 198, 206-07, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (\"In effect, § 542(a) grants to the estate a possessory interest in certain property of the debtor that was not held by the debtor at the commencement of reorganization proceedings.”). . 11 U.S.C. § 362(d) (2005). . 11 U.S.C. § 542(a) (2005). . See In re Anthem Communities/RBG, LLC, 267 B.R. 867, 870-71 (Bankr.D.Colo.2001); In re Siciliano, 167 B.R. 999, 1009-10 (Bankr.E.D.Pa.1994); In re Wolsky, 53 B.R. 751, 756 (Bankr.D.N.D.1985)" }, { "docid": "4671363", "title": "", "text": "The Kolbergs rely principally on the case of In re Knaus. In that ease, the plaintiff/debtor purchased certain merchandise from a lumber company on credit. In re Knaus, 889 F.2d 773, 774 (8th Cir.1989). Upon nonpayment, the lumber company obtained a judgment in state court and proceeded to seize grain and equipment belonging to the debtor. Id. The debtor subsequently filed for bankruptcy. Id. He then notified the creditor of the filing and demanded the return of his property. Id. The creditor refused to comply and the debtor filed an adversary proceeding with the bankruptcy court for the return of the property. Id. On appeal, the Eighth Circuit held that when a creditor has knowledge of the bankruptcy petition the failure to automatically turn over property of the estate constitutes a willful violation of the automatic stay. Id. at 775. Other courts have also relied on the creditor’s knowledge of a bankruptcy petition alone as a sufficient basis to find a willful violation of the automatic stay. See, e.g., In re Abrams, 127 B.R. 239 (9th Cir. BAP 1991); General Motors Acceptance Corp. v. Ryan, 183 B.R. 288 (M.D.Fla.1995). The Knaus decision and its prodigy, however, are not binding precedent for this court. Significantly, several other courts have rejected the reasoning employed by the Knaus court and have found that a willful violation requires more than a mere showing that the creditor had knowledge of the bankruptcy petition. See, e.g., In re Young, 193 B.R. 620 (Bankr.D.Dist.Col.1996) (failure to immediately turn over property rightfully seized prepetition is not a violation of the automatic stay); In re Zunich, 88 B.R. 721 (Bankr.W.D.Pa.1988) (willful violation requires element of maliciousness or bad faith); Matter of Van Riper, 25 B.R. 972 (Bankr.W.D.Wis.1982) (notice of bankruptcy petition by itself is not a sufficient basis to award sanctions). Generally, most courts have held that a willful violation requires proof that the creditor demonstrated “egregious, intentional misconduct.” In re Sielaff, 164 B.R. 660, 573 (Bankr.W.D.Mich.1994) (citing U.S., Farmers Home Admin. v. Ketelsen, 880 F.2d 990, 993 (8th Cir.1989)). In this case, there is no evidence that Agrieredit" }, { "docid": "23135280", "title": "", "text": "embraced one or both of TranSouth’s arguments. See Nash v. Ford Motor Credit Co. (In re Nash), 228 B.R. 669, 673-74 (Bankr.N.D.Ill.1999); Spears v. Ford Motor Credit Co. (In re Spears), 223 B.R. 159, 166 (Bankr.N.D.Ill.1998); In re Fitch, 217 B.R. 286, 290-91 (Bankr.S.D.Cal.1998); Massey v. Chrysler Fin. Corp. (In re Massey), 210 B.R. 693, 696 (Bankr.D.Md.1997); Brown v. Joe Addison, Inc. (In re Brown), 210 B.R. 878, 883 (Bankr.S.D.Ga.1997); In re Young, 193 B.R. 620, 624 (Bankr.D.D.C.1996). The Panel concludes that TranSouth’s position is not supported by the Bankruptcy Code, was rejected in large part by the Supreme Court in Whiting Pools and is contrary to the weight of authority, including decisions by the Courts of Appeals for the Eighth and Ninth Circuits. Nothing in § 362 itself suggests the “adequate protection” exception to the automatic stay argued by TranSouth. As demonstrated above, the presence of “property of the estate” triggers the proscription.in § 362(a)(3). There is no “exception” to property of the estate for property with respect to which a creditor claims a right of “adequate protection.” To the contrary, as recognized by the Supreme Court in Whiting Pools, §§ 541 and 542 of the Code work together to draw back into the estate a right of possession that is claimed by a lien creditor pursuant to a prepetition seizure; the Code then substitutes “adequate protection” for possession as one' of the lien creditor’s rights in the bankruptcy case. As explained by the Supreme Court: When property seized prior to the filing of a petition is drawn into the Chapter 11 reorganization estate, the Service’s tax lien is not dissolved; nor is its status as a secured creditor destroyed. The IRS, under § 363(e), remains entitled to adequate protection for its interests, to other rights enjoyed by secured creditors, and to the specific privileges accorded tax collectors. Section 512(a) simply requires the Service to seek protection of its interest according to the congressionally established bankruptcy procedures, rather than by withholding the seized property from the debtor’s efforts to reorganize. Whiting Pools, 462 U.S. at 211-12, 103 S.Ct. 2309" }, { "docid": "8747027", "title": "", "text": "assets available to effect a successful reorganization. In our view, the plain language of section 542 (directing that those in custody of assets of the estate “shall deliver” them to the trustee); the approach of the Whiting Pools Court to equitable interests and bankruptcy estates; and the broad language of the 1984 Amendments enlarging the scope of the automatic stay point unmistakably away from any Congressional desire to impose such an additional burden on debtors seeking bankruptcy protection. As the Eighth Circuit wrote, [I]f persons who could make no substantial adverse claim to a debtor’s property in their possession could, without cost to themselves, compel the debtor or his trustee to bring suit as a prerequisite to returning the property, the powers of a bankruptcy court ... to collect the estate for the benefit of creditors would be vastly reduced. Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir.1989) (internal quotation marks omitted). SEF-CU has identified no basis for concluding that Congress intended this result. The district court’s decision in Alberto also runs counter to the strong trend of decisions from our sister Circuits. For example, the Seventh Circuit has bluntly ruled that “a plain reading of the Bankruptcy Code’s provisions, the Supreme Court’s decision in [Whiting Pools ], and various practical considerations require that a creditor immediately return a seized asset in which a debtor has an equity interest to the debtor’s estate upon his filing of Chapter 13 bankruptcy.” Thompson, 566 F.3d at 700; see also Knaus, 889 F.2d at 775. Bankruptcy Appellate Panels from other Circuits agree. E.g., Unified People’s Fed. Credit Union v. Yates (In re Yates), 332 B.R. 1, 7 (10th Cir. BAP 2005); TranSouth Fin. Corp. v. Sharon (In re Sharon), 234 B.R. 676, 682 (6th Cir. BAP 1999); Abrams v. Sw. Leasing & Rental Inc. (In re Abrams), 127 B.R. 239, 243 (9th Cir. BAP 1991). Only the Eleventh Circuit has adopted a contrary approach, and those decisions have largely relied on readings of state law with regard to the relative legal property interests of debtor and secured" } ]

[ { "docid": "22790182", "title": "", "text": "n. 4, 342-343, and n. 6, 357. Second, it finds that anonymous speech has an expressive value both to the speaker and to society that outweighs public interest in disclosure. Third, it finds that § 3599.09(A) cannot survive strict scrutiny because it is a “content-based” restriction on speech. I cannot join the majority's analysis because it deviates from our settled approach to interpreting the Constitution and because it superimposes its modern theories concerning expression upon the constitutional text. Whether “great works of literature” — by Voltaire or George Eliot have been published anonymously should be irrelevant to our analysis, because it sheds no light on what the phrases “free speech” or “free press” meant to the people who drafted and ratified the First Amendment. Similarly, whether certain types of expression have “value” today has little significance; what is important is whether the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights. And although the majority faithfully follows our approach to “content-based” speech regulations, we need not undertake this analysis when the original understanding provides the answer. While, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it. It should hold itself to no less a standard when interpreting the Speech and Press Clauses. After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author’s right to express his thoughts on political candidates or issues in an anonymous fashion. Because the majority has adopted an analysis that is largely unconnected to the Constitution’s text and history, I concur only in the judgment. The Anti-Federalists recognized little difficulty in what today would be a state-action problem, because they considered Federalist conduct in supporting the Constitution as a preview of the tyranny to come under" } ]

[ { "docid": "22738388", "title": "", "text": "that was critical of Members of Congress. Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force. Modern day movies, television comedies, or skits on YouTube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value” in order to engage in political speech. 2 U. S. C. § 431(9)(A)(i). Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design. Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. “The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” McConnell, supra, at 341 (opinion of Kennedy, J.). The judgment of the District Court is reversed with respect to the constitutionality of 2 U. S. C. § 441b’s restrictions on corporate independent expenditures. The judgment is affirmed with respect to BCRA’s disclaimer and disclosure requirements. The case is remanded for further proceedings consistent with this opinion. It is so ordered. Chief Justice Roberts, with whom Justice Alito joins, concurring. The Government urges" }, { "docid": "22181041", "title": "", "text": "Mills v. Alabama, 384 U. S. 214, 218-220 (1966). As Justice Brennan, supported by a majority of the Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749 (1985), stated: “[T]he rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities.” Id., at 784 (dissenting opinion, joined by Marshall, Blackmun, and Stevens, JJ.); id., at 773 (White, J., concurring in judgment) (“[T]he First Amendment gives no more protection to the press . . . than it does to others exercising their freedom of speech”). The argument relied on by the majority, that media corporations are in the business of communicating and other corporations are not, is unsatisfying. All corporations communicate with the public to some degree, whether it is their business or not; and communication is of particular importance for nonprofit corporations. The web of corporate ownership that links media and nontnedia corporations is difficult to untangle for the purpose of any meaningful distinction. Newspapers, television networks, and other media may be owned by parent corporations with multiple business interests. Nothing in the statutory scheme prohibits a business corporate parent from directing its newspaper to support or oppose a particular candidate. The Act not only permits that discretion or control, but makes it a crime for a public-interest nonprofit corporation to bring to light such activity if to do so infers candidate support or opposition. I can find no permissible basis under the First Amendment for the States to make this unsupported distinction among corporate speakers. IV The Court’s hostility to the corporate form used by the speaker in this case and its assertion that corporate wealth is the evil to be regulated is far too imprecise to justify the most severe restriction on political speech ever sanctioned by this Court. In any event, this distinction is irrelevant to a nonprofit corporation. “Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose" }, { "docid": "22738375", "title": "", "text": "the raising and spending of soft money, the incentives ... to exploit [26 U. S. C. § 527] organizations will only increase”). Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials. Rapid changes in technology — and the. creative dynamic inherent in the concept of free expression — counsel against upholding a law that restricts political speech in certain media or by certain speakers. See Part II-C, supra. Today, 30-second television ads may be the most effective way to convey a political message. See McConnell, supra, at 261 (opinion of SCALIA, J.). Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at 249. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech. No serious reliance interests are at stake. As the Court stated in Payne v. Tennessee, 501 U. S. 808, 828 (1991), reliance interests are important considerations in property and contract cases, where parties may have acted in conformance with existing legal rules in order to conduct transactions. Here, though, parties, have been prevented from acting— corporations have been banned from making independent expenditures. Legislatures may have enacted bans on corporate expenditures believing that those bans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us" }, { "docid": "22738584", "title": "", "text": "Constitution and the Bill of Rights drew”). Given that corporations were conceived of as artificial entities and do not have the technical capacity to “speak,” the burden of establishing that the Framers and ratifiers understood “the freedom of speech” to encompass corporate speech is, I believe, far heavier than the majority acknowledges. Postratifieation practice bolsters the conclusion that the First Amendment, “as originally understood,” ante, at 353, did not give corporations political speech rights on a par with the rights of individuals. Well into the modern era of general incorporation statutes, “[t]he common law was generally interpreted as prohibiting corporate political participation,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 819 (1978) (White, J., dissenting), and this Court did not recognize any First Amendment protections for corporations until the middle part of the 20th century, see ante, at 342 (listing cases). In fact, the Free Press Clause might be toned against Justice Scalia, for two reasons. First, we learn from it that the drafters of the First Amendment did draw distinctions — explicit distinctions — between types of “speakers,” or speech outlets or forms. Second, the Court’s strongest historical evidence all relates to the Framers’ views on the press, see ante, at 353-354; ante, at 388-390 (Scalia, J., concurring), yet while the Court tries to sweep this evidence into the Free Speech Clause, the Free Press Clause provides a more natural textual home. The text and history highlighted by our colleagues suggests why one type of corporation, those that are part of the press, might be able to claim special First Amendment status, and therefore why some kinds of “identity”-based distinctions might be permissible after all. Once one accepts that much, the intellectual edifice of the majority opinion crumbles. Cf. L. Levy, Legacy of Suppression: Freedom o'f Speech and Press in Early American History 4 (1960) (“The meaning of no other clause of the Bill of Rights at the time of its framing and ratification has been so obscure to us” as the Free Speech and Press Clause). As the majority notes, there is some academic debate" }, { "docid": "22691996", "title": "", "text": "nationwide circulation, national or worldwide wire news services, and substantial interests in book publishing and distribution enterprises. Corporate ownership may extend, vertically, to pulp mills and pulp timberlands to insure an adequate, continuing supply of newsprint and to trucking and steamship lines for the purpose of transporting the newsprint to the presses. Such activities would be logical economic auxiliaries tó a publishing conglomerate. Ownership also may extend beyond to business activities unrelated to the task of publishing newspapers and magazines or broadcasting radio and television programs. Obviously, such far-reaching ownership would not be possible without the state-provided corporate form and its “special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets . . . .” Post, at 809 (White, J., dissenting). In terms of “unfair advantage in the political process” and “corporate domination of the electoral process,” post, at 809-810, it could be argued that such media conglomerates as I de scribe pose a much more realistic threat to valid interests than do appellants and similar entities not regularly concerned with shaping popular opinion on public issues. See Miami Herald Publishing Co. v. Tornillo, supra; ante, at 791 n. 30. In Tornillo, for example, we noted the serious contentions advanced that a result of the growth of modern media empires “has been to place in a few hands the power to inform the American people and shape public opinion.” 418 U. S., at 250. In terms of Massachusetts’ other concern, the interests of minority shareholders, I perceive no basis for saying that the managers and directors of the media conglomerates are more or less sensitive to the views and desires of minority shareholders than are corporate officers generally. Nor can it be said, even if relevant to First Amendment analysis — which it is not — that the former are more virtuous, wise, or restrained in the exercise of corporate power than are the latter. Cf. Columbia Broadcasting System v. Democratic National Comm., 412 U. S. 94, 124-125 (1973); 14 The Writings of Thomas Jefferson 46 (A. Libscomb ed. 1904) (letter" }, { "docid": "22738405", "title": "", "text": "Jurisprudence on Law and Politics, 52 How. L. J. 655, 669 (2009) (Austin “has been understood by most commentators to be an opinion driven by equality considerations, albeit disguised in the language of ‘political corruption’ ”), with post, at 464 (Austin’s rationale “is manifestly not just an ‘equalizing’ ideal in disguise”). It should not be surprising, then, that Members of the Court have relied on Austin’s expansive logic to justify greater incursions on the First Amendment, even outside the original context of corporate advocacy on behalf of candidates running for office. See, e. g., Davis v. Federal Election Comm’n, 554 U. S. 724, 756 (2008) (Stevens, J., concurring in part and dissenting in part) (relying on Austin and other cases to justify restrictions on campaign spending by individual candidates, explaining that “there is no reason that their logic — specifically, their concerns about the corrosive and distorting effects of wealth on our political process — is not equally applicable in the context of individual wealth”); McConnell, supra, at 203-209 (extending Austin beyond its original context to cover not only the “functional equivalent” of express advocacy by corporations, but also electioneering speech conducted by labor unions). The dissent in this case succumbs to the same temptation, suggesting that Austin justifies prohibiting corporate speech because such speech might unduly influence “the market for legislation.” Post, at 471. The dissent reads Austin to permit restrictions on corporate speech based on nothing more than the fact that the corporate form may help individuals coordinate and present their views more effectively. Post, at 471-472. A speaker’s ability to persuade, however, provides no basis for government regulation of free and open public debate on what the laws should be. If taken seriously, Austin’s logic would apply most directly to newspapers and other media corporations. They have a more profound impact on public discourse than most other speakers. These corporate entities are, for the time being, not subject to §441b’s otherwise generally applicable prohibitions on corporate political speech. But this is simply a matter of legislative grace. The fact that the law currently grants a favored position" }, { "docid": "22691997", "title": "", "text": "entities not regularly concerned with shaping popular opinion on public issues. See Miami Herald Publishing Co. v. Tornillo, supra; ante, at 791 n. 30. In Tornillo, for example, we noted the serious contentions advanced that a result of the growth of modern media empires “has been to place in a few hands the power to inform the American people and shape public opinion.” 418 U. S., at 250. In terms of Massachusetts’ other concern, the interests of minority shareholders, I perceive no basis for saying that the managers and directors of the media conglomerates are more or less sensitive to the views and desires of minority shareholders than are corporate officers generally. Nor can it be said, even if relevant to First Amendment analysis — which it is not — that the former are more virtuous, wise, or restrained in the exercise of corporate power than are the latter. Cf. Columbia Broadcasting System v. Democratic National Comm., 412 U. S. 94, 124-125 (1973); 14 The Writings of Thomas Jefferson 46 (A. Libscomb ed. 1904) (letter to Dr. Walter Jones, Jan. 2, 1814). Thus, no factual distinction has been identified as yet that would justify government restraints on the right of appellants to express their views without, at the same time, opening the door to similar restraints on media conglomerates with their vastly greater influence. Despite these factual similarities between media and non-media corporations, those who view the Press Clause as somehow conferring special and extraordinary privileges or status on the “institutional press” — which are not extended to those who wish to express ideas other than by publishing a newspaper — might perceive no danger to institutional media corporations flowing from the position asserted by Massachusetts. Under this narrow reading of the Press Clause, government could perhaps impose on nonmedia corporations restrictions not permissible with respect to “media” enterprises. Cf. Bezanson, The New Free Press Guarantee, 63 Va. L. Rev. 731, 767-770 (1977). The Court has not yet squarely resolved whether the Press Clause confers upon the “institutional press” any freedom from government restraint not enjoyed by all others. I" }, { "docid": "22738352", "title": "", "text": "interest, or salary”). Austin’s antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. See McConnell, 540 U. S., at 283 (opinion of Thomas, J.) (“The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press”). Cf. Tornillo, 418 U. S., at 250 (alleging the existence of “vast accumulations of unreviewable power in the modern media empires”). Media corporations are now exempt from §441b’s ban on corporate expenditures. See 2 U. S. C. §§ 431(9)(B)(i), 434(f)(3)(B)(i). Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have “immense aggregations of wealth,” and the views expressed by media corporations often “have little or no correlation to the public’s support” for those views. Austin, 494 U. S., at 660. Thus, under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment. The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Id., at 691 (Scalia, J., dissenting) (citing Bellotti, 435 U. S., at 782); see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting); id., at 773 (White, J., concurring in judgment). With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred. The law’s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidistortion rationale. And the exemption results in a further, separate reason for finding this law invalid: Again by its own terms, the" }, { "docid": "22738354", "title": "", "text": "law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies-to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news. So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and ah unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment. There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 360-361 (1995) (Thomas, J., concurring in judgment). Yet television networks and maj or newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the Colonies. See McConnell, supra, at 252-253 (opinion of Scalia, J.); Grosjean, 297 U. S., at 245-248; Near, 283 U. S., at 713-714. The great debates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication of that era — newspapers owned by individuals. See McIntyre, 514 U. S., at 341-343; id., at 367 (Thomas, J., concurring in judgment). At the founding, speech was open, comprehensive, and vital to society’s definition of itself; there were no limits" }, { "docid": "22738475", "title": "", "text": "Shelledy, Autonomy, Debate, and Corporate Speech, 18 Hastings Const. L. Q. 541, 578 (1991); cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819) (Marshall, C. J.) (“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it”); Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 129 (“The framers of the First Amendment could scarcely have anticipated its application to the corporation form. That, of course, ought not to be dispositive. What is compelling, however, is an understanding of who was supposed to be the beneficiary of the free speech guaranty — the individual”). In light of these background practices and understandings, it seems to me implausible that the Framers believed “the freedom of speech” would extend equally to all corporate speakers, much less that it would preclude legislatures from taking limited measures to guard against corporate capture of elections. The Court observes that the Framers drew on diverse intellectual sources, communicated through newspapers, and aimed to provide greater freedom of speech than had existed in England. Ante, at 353. From these (accurate) observations, the Court concludes that “[t]he First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media.” Ibid. This conclusion is far from certain, given that many historians believe the Framers were focused on prior restraints on publication and did not -understand the First Amendment to “prevent the subsequent punishment of such [publications] as may be deemed contrary to the public welfare.” Near v. Minnesota ex rel. Olson, 283 U. S. 697, 714 (1931) (internal quotation marks omitted). Yet, even if the majority’s conclusion were correct, it would tell us only that the First Amendment was understood to protect political speech in certain media. It would tell us little about whether the Amendment was understood to protect general treasury electioneering expenditures by corporations, and to what extent. As a matter of original expectations, then, it seems absurd to think" }, { "docid": "22691977", "title": "", "text": "13, 359 N. E. 2d, at 1270 n. 13. Because none of the appellants claimed to be part of the institutional press, the court did not “venture an opinion on such matters.” Ibid. The observation of Mr. Justice White, post, at 808 n. 8, that media corporations cannot be “immunize[d] ” from restrictions on electoral expenditures, ignores the fact that those corporations need not make separately identifiable expenditures to communicate their views. They accomplish the same objective each day within the framework of their usual protected communications. If we were to adopt appellee’s suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by appellants, the result would not be responsive to the informational purpose of the First Amendment. Certainly there are voters in Massachusetts, concerned with such economic issues as the tax rate, employment opportunities, and the ability to attract new business into the State and to prevent established businesses from leaving, who would be as interested in hearing appellants’ views on a graduated tax as the views of media corporations that might be less knowledgeable on the subject. “[P]ublic debate must not only be unfettered; it must also be informed.” Saxbe v. Washington Post Co., 417 U. S. 843, 862-863 (1974) (Powell, J., dissenting). Mr. Justice White’s dissenting view would empower a State to restrict corporate speech far more narrowly than would the opinion of the Massachusetts court or the statute under consideration. This case involves speech in connection with a referendum. Mr. Justice White’s rationale would allow a State to proscribe the expenditure of corporate funds at any time for the purpose of expressing views on “political [or] social questions” or in connection with undefined “ideological crusades,” unless the expenditures were shown to be “integrally related to corporate business operations.” Post, at 803, 805, 806, 816, 819, 821. Thus corporate activities that are widely viewed as educational and socially constructive could be prohibited. Corporations no longer would be able safely to support — by contributions or public service advertising — educational, charitable, cultural, or even human rights" }, { "docid": "22738406", "title": "", "text": "to cover not only the “functional equivalent” of express advocacy by corporations, but also electioneering speech conducted by labor unions). The dissent in this case succumbs to the same temptation, suggesting that Austin justifies prohibiting corporate speech because such speech might unduly influence “the market for legislation.” Post, at 471. The dissent reads Austin to permit restrictions on corporate speech based on nothing more than the fact that the corporate form may help individuals coordinate and present their views more effectively. Post, at 471-472. A speaker’s ability to persuade, however, provides no basis for government regulation of free and open public debate on what the laws should be. If taken seriously, Austin’s logic would apply most directly to newspapers and other media corporations. They have a more profound impact on public discourse than most other speakers. These corporate entities are, for the time being, not subject to §441b’s otherwise generally applicable prohibitions on corporate political speech. But this is simply a matter of legislative grace. The fact that the law currently grants a favored position to media corporations is no reason to overlook the danger inherent in accepting a theory that would allow government restrictions on their political speech. See generally McConnell, supra, at 283-286 (Thomas, J., concurring in part, concurring in judgment in part, and dissenting in part). These readings of Austin do no more than carry that decision’s reasoning to its logical endpoint. In doing so, they highlight the threat Austin poses to First Amendment rights generally, even outside its specific factual context of corporate express advocacy. Because Austin is so difficult to confine to its facts — and because its logic threatens to undermine our First Amendment jurisprudence and the nature of public discourse more broadly — the costs of giving it stare decisis effect are unusually high. Finally and most importantly, the Government’s own effort to defend Austin — or, more accurately, to defend something that is not quite Austin — underscores its weakness as a precedent of the Court. The Government concedes that Austin “is not the most lucid opinion,” yet asks us to reaffirm" }, { "docid": "22691995", "title": "", "text": "and judgment of the Court but write separately to raise some questions likely to arise in this area in the future. A disquieting aspect of Massachusetts’ position is that it may carry the risk of impinging on the First Amendment rights of those who employ the corporate form — as most do— to carry on the business of mass communications, particularly the large media conglomerates. This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from corporations such as the appellants in this case. Making traditional use of the corporate form, some media enterprises have amassed vast wealth and power and conduct many activities, some directly related — and some not — to their publishing and broadcasting activities. See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 248-254 (1974). Today, a corporation might own the dominant newspaper in one or more large metropolitan centers, television and radio stations in those same centers and others, a newspaper chain, news magazines with nationwide circulation, national or worldwide wire news services, and substantial interests in book publishing and distribution enterprises. Corporate ownership may extend, vertically, to pulp mills and pulp timberlands to insure an adequate, continuing supply of newsprint and to trucking and steamship lines for the purpose of transporting the newsprint to the presses. Such activities would be logical economic auxiliaries tó a publishing conglomerate. Ownership also may extend beyond to business activities unrelated to the task of publishing newspapers and magazines or broadcasting radio and television programs. Obviously, such far-reaching ownership would not be possible without the state-provided corporate form and its “special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets . . . .” Post, at 809 (White, J., dissenting). In terms of “unfair advantage in the political process” and “corporate domination of the electoral process,” post, at 809-810, it could be argued that such media conglomerates as I de scribe pose a much more realistic threat to valid interests than do appellants and similar" }, { "docid": "22738351", "title": "", "text": "wealthy individuals from corporations on the ground that “[s]tate law grants corporations special advantages— such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.” 494 U. S., at 658-659. This does not suffice, however, to allow laws prohibiting speech. “It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.” Id., at 680 (Scalia, J., dissenting). It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660 (majority opinion). All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas. See id., at 707 (Kennedy, J., dissenting) (“Many persons can trace their funds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary”). Austin’s antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. See McConnell, 540 U. S., at 283 (opinion of Thomas, J.) (“The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press”). Cf. Tornillo, 418 U. S., at 250 (alleging the existence of “vast accumulations of unreviewable power in the modern media empires”). Media corporations are now exempt from §441b’s ban on corporate expenditures. See 2 U. S. C. §§ 431(9)(B)(i), 434(f)(3)(B)(i). Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have “immense aggregations of wealth,” and the views expressed by media corporations often “have little or no correlation to the public’s support” for those views. Austin, 494 U. S., at 660. Thus, under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment. The media exemption discloses further" }, { "docid": "22738476", "title": "", "text": "the Framers drew on diverse intellectual sources, communicated through newspapers, and aimed to provide greater freedom of speech than had existed in England. Ante, at 353. From these (accurate) observations, the Court concludes that “[t]he First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media.” Ibid. This conclusion is far from certain, given that many historians believe the Framers were focused on prior restraints on publication and did not -understand the First Amendment to “prevent the subsequent punishment of such [publications] as may be deemed contrary to the public welfare.” Near v. Minnesota ex rel. Olson, 283 U. S. 697, 714 (1931) (internal quotation marks omitted). Yet, even if the majority’s conclusion were correct, it would tell us only that the First Amendment was understood to protect political speech in certain media. It would tell us little about whether the Amendment was understood to protect general treasury electioneering expenditures by corporations, and to what extent. As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral advocacy. As a matter of original meaning, it likewise seems baseless — unless one evaluates the First Amendment’s “principles,” ante, at 319, 363, or its “purpose,” ante, at 376 (opinion of Roberts, C. J.), at such a high level of generality that the historical understandings of the Amendment cease to be a meaningful constraint on the judicial task. This case sheds a revelatory light on the assumption of some that an impartial judge’s application of an originalist methodology is likely to yield more determinate answers, or to play a more decisive role in the decisional process, than his or her views about sound policy. Justice Scalia criticizes the foregoing discussion for failing to adduce statements from the founding era showing that corporations were understood to be excluded from the First Amendment’s free speech guarantee. Ante, at 386, 393. Of course, Justice Scalia adduces no statements to suggest the contrary proposition, or even to suggest that the contrary" }, { "docid": "22738355", "title": "", "text": "Ohio Elections Comm’n, 514 U. S. 334, 360-361 (1995) (Thomas, J., concurring in judgment). Yet television networks and maj or newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the Colonies. See McConnell, supra, at 252-253 (opinion of Scalia, J.); Grosjean, 297 U. S., at 245-248; Near, 283 U. S., at 713-714. The great debates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication of that era — newspapers owned by individuals. See McIntyre, 514 U. S., at 341-343; id., at 367 (Thomas, J., concurring in judgment). At the founding, speech was open, comprehensive, and vital to society’s definition of itself; there were no limits on the sources of speech and knowledge. See B. Bailyn, Ideological Origins of the American Revolution 5 (1967) (“Any number of people could join in such proliferating polemics, and rebuttals could come from all sides”); G. Wood, Creation of the American Republic 1776-1787, p. 6 (1969) (“[I]t is not surprising that the intellectual sources of [the Americans’] Revolutionary thought were profuse and various”). The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted. Austin interferes with the “open marketplace” of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208 (2008); see ibid. (ideas “may compete” in this marketplace “without government interference”); McConnell, 540 U. S., at 274 (opinion of Thomas, J.). It permits the Government to ban the political speech" }, { "docid": "22181040", "title": "", "text": "for members and operates in an uncertain legal climate, groups often prefer to organize in nonprofit corporate form. The corporate form provides clear rights and responsibilities and limits the liability of members. E. Hadden & B. French, Nonprofit Organizations 12 (1987); H. Oleck, Nonprofit Corporations, Organizations and Associations 30-31 (4th ed. 1982); M. Lane, Legal Handbook for Nonprofit Organizations 4, 22-26, 43, 59-61, 124 (1980). For these reasons, in recent years the number of important unincorporated associations has dwindled while the number of incorporated associations has proliferated. Oleck, supra, at 31. By deciding to operate as a nonprofit corporation rather than an unincorporated association, a group does not forfeit its First Amendment protection to participate in political discourse. Ill An independent ground for invalidating this statute is the blanket exemption for media corporations. It is beyond peradventure that the media could not be prohibited from speaking about candidate qualifications. The First Amendment would not tolerate a law prohibiting a newspaper or television network from spending on political comment because it operates through a corporation. See Mills v. Alabama, 384 U. S. 214, 218-220 (1966). As Justice Brennan, supported by a majority of the Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749 (1985), stated: “[T]he rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities.” Id., at 784 (dissenting opinion, joined by Marshall, Blackmun, and Stevens, JJ.); id., at 773 (White, J., concurring in judgment) (“[T]he First Amendment gives no more protection to the press . . . than it does to others exercising their freedom of speech”). The argument relied on by the majority, that media corporations are in the business of communicating and other corporations are not, is unsatisfying. All corporations communicate with the public to some degree, whether it is their business or not; and communication is of particular importance for nonprofit corporations. The web of corporate ownership that links media and nontnedia corporations is difficult to untangle for the purpose of any meaningful distinction. Newspapers, television networks," }, { "docid": "22691994", "title": "", "text": "shareholder invests in a corporation of his own volition aiid is free to withdraw his investment at any time and for any reason. A more relevant analogy, therefore, is to the situation where an employee voluntarily joins a union, or an individual voluntarily joins an association, and later finds himself in disagreement with its stance on a political issue. The Street and Abood Courts did not address the question whether, in such a situation, the union or association must refund a portion of the dissenter’s dues or, more drastically, refrain from expressing the majority’s views. In addition, even apart from the substantive differences between compelled membership in a union and voluntary investment in a corporation or voluntary participation in any collective organization, it is by no means an automatic step from the remedy in Abood, which honored the interests of the minority without infringing the majority’s rights, to the position adopted by the dissent which would completely silence the majority because a hypothetical minority might object. Mr. Chief Justice Burger, concurring. I join the opinion and judgment of the Court but write separately to raise some questions likely to arise in this area in the future. A disquieting aspect of Massachusetts’ position is that it may carry the risk of impinging on the First Amendment rights of those who employ the corporate form — as most do— to carry on the business of mass communications, particularly the large media conglomerates. This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from corporations such as the appellants in this case. Making traditional use of the corporate form, some media enterprises have amassed vast wealth and power and conduct many activities, some directly related — and some not — to their publishing and broadcasting activities. See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 248-254 (1974). Today, a corporation might own the dominant newspaper in one or more large metropolitan centers, television and radio stations in those same centers and others, a newspaper chain, news magazines with" }, { "docid": "22738419", "title": "", "text": "pamphlets, and communicated through the press in 1790. W. diGiacomantonio, “For the Gratification of a Volunteering Society”: Antislavery and Pressure Group Politics in the First Federal Congress, 15 J. Early Republic 169 (1995). The New York Sons of Liberty sent a circular to Colonies farther south in 1766. P. Maier, From Resistance to Revolution 79-80 (1972). And the Society for the Relief and Instruction of Poor Germans circulated a biweekly paper from 1755 to 1757. Adams, The Colonial German-language Press and the American Revolution, in The Press & the American Revolution 151, 161-162 (B. Bailyn & J. Hench eds. 1980). The dissent offers no evidence— none whatever — that the First Amendment’s unqualified text was originally understood to exclude such associational speech from its protection. Historical evidence relating to the textually similar clause “the freedom of. . . the press” also provides no support for the proposition that the First Amendment excludes conduct of artificial legal entities from the scope of its protection. The freedom of “the press” was widely understood to protect the publishing activities of individual editors and printers. See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 360 (1995) (Thomas, J., concurring in judgment); see also McConnell, 540 U. S., at 252-253 (opinion of Scalia, J.). But these individuals often acted through newspapers, which (much like corporations) had their own names, outlived the individuals who had founded them, could be bought and sold, were sometimes owned by more than one person, and were operated for profit. See generally F. Mott, American Journalism: A History of Newspapers in the United States Through 250 Years 3-164 (1941); J. Smith, Freedom’s Fetters (1956). Their activities were not stripped of First Amendment protection simply because they were carried out under the banner of an artificial legal entity. And the notion which follows from the dissent’s view, that modern newspapers, since they are incorporated, have free-speech rights only at the sufferance of Congress, boggles the mind. In passing, the dissent also claims that the Court’s conception of corruption is unhistorical. The Framers “would have been appalled,” it says, by the evidence" }, { "docid": "22738353", "title": "", "text": "difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Id., at 691 (Scalia, J., dissenting) (citing Bellotti, 435 U. S., at 782); see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting); id., at 773 (White, J., concurring in judgment). With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred. The law’s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidistortion rationale. And the exemption results in a further, separate reason for finding this law invalid: Again by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies-to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news. So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and ah unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment. There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. See McIntyre v." } ]

[ { "docid": "10929718", "title": "", "text": "plaintiffs on the basis of statutes of limitations defendants contend are applicable. A. The Three-Year Rule Defendants argue that the plaintiffs’ claims under §§ 11 and 12(2) of the Securities Act of 1933 for the 1964 to 1970 program years are time-barred by § 13 of the 1933 Act, 15 U.S.C. § 77m, which provides: “No action shall be maintained to enforce any liability created under [Section 11 or 12(2)] unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence . . . . In no event shall any such action be brought to enforce a liability created under [Section 11] more than three years after the security was bona fide offered to the public or under [Section 12(2)] more than three years after the sale.” Defendants contend that the statutory language clearly requires that an action be brought within an absolute time limit of three years from the date of offer or sale of a security. For the 1964 to 1969 program years, they maintain that plaintiffs’ Section 11 claims are time-barred because they were not filed within three years of the date when the securities were bona fide offered to the public and that the Section 12(2) claims are likewise time-barred because they were not filed within three years of the date of sale of the securities. Defendants further argue that the three-year rule bars claims under Sections 11 and 12(2) with respect to the 1970 program year for the same reasons, and that the court-ordered rescission offer of April 1971 does not extend this three-year period to these plaintiffs who did not act upon the rescission offer. B. The One-Year Rule and Relation Back Section 13 also sets out a second test and states that an action or claim under Sections 11 and 12(2) is timely filed only if the plaintiff files his claim within one year after he discovers or with due diligence should have discovered the untrue statement or omission in the offering or sale of" } ]

[ { "docid": "14180860", "title": "", "text": "Kovens, 625 F.2d 15, 17 (4th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981). “The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles.” Holmberg v. Armbrecht, supra, 327 U.S. at 395, 66 S.Ct. at 584. The Fourth Circuit and this Court have concluded that Maryland’s blue sky law is most analogous to the federal securities laws. Thus, the Courts have consistently applied the limitations periods contained in MD.CORPS. & ASS’NS CODE ANN. § 11-703(f) to actions under sections 17(a), 10(b), and Rule 10(b)(5). See, e.g., O’Hara v. Kovens, supra, (§ 10(b)); Fox v. Kane-Miller Corporation, 542 F.2d 915, 918 (4th Cir.1976) (Rule 10(b)(5)); Sasso v. Koehler, 445 F.Supp. 762, 768 (D.Md.1978) (§ 17(a), § 10(b), and Rule 10(b)(5); cf. Newman v. Prior, 518 F.2d 97, 99 (4th Cir.1975) (Virginia blue sky law applicable to § 17(a) claims). Furthermore, because liability of controlling persons under section 20(a) is derived from the liability of the controlled person, the same limitation period should apply to section 20(a) violations as that which applies to those provisions allegedly violated by the controlled person. Cf. Herm v. Stafford, supra. In the present case, therefore, the limitations periods contained in section ll-703(f) also apply to plaintiffs’ claims under section 20(a) of the Securities Exchange Act of 1934. Section ll-703(f) provides in pertinent part: (1) A person may not sue under this section after the earlier to occur of three years after the contract of sale or purchase or (2) ... (ii) ... one year after the discovery of the untrue statement or omission, or after the discovery should have been made by the exercise of reasonable diligence. MD.CORPS. & ASS’NS CODE ANN. § 11-703(f) (1975 & Cum.Supp.1984). Accepting arguendo plaintiffs’ contention that they could not have discovered defendants’ fraud until 1983, plaintiffs claims are nevertheless time-barred under the three-year provision of section 11-703(f)(2)(ii). This suit was instituted more than seven" }, { "docid": "14180862", "title": "", "text": "years after the contract of sale of the Mountainview securities and more than six years after the contract of sale of the Newport securities. Plaintiffs again argue, however, that the federal equitable tolling doctrine tolls the running of section ll-703(f) until plaintiffs knew or should have known of defendants’ fraud. Plaintiffs’ argument raises the question: To what extent do federal tolling provisions govern the running of state statutes of limitation “borrowed” for federal actions cognizable only in federal courts? “Without launching into an exegesis on the nice distinctions that have been drawn in applying state and federal law in this area, ... it suffices to say that [plaintiffs have] overstated [their] case.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975) (footnotes omitted). Whether or not the federal equitable tolling doctrine generally tolls a state statute of limitations borrowed for a federal cause of action, the doctrine has no application to the facts of this case for several reasons. Section ll-703(f) provides the limitations periods for several provisions of the Maryland blue sky law, including actions for the sale of unregistered securities, section 11-501, and actions for the sale of securities by means of any untrue statement of a material fact, section ll-703(a)(l)(ii). In this respect, section ll-703(f) is strikingly similar to section 13 of the Securities Act of 1933. Indeed, section 13 also provides the limitations period for claims arising from the sale of unregistered securities, section 12(1), and the sale of securities by means of any untrue statement of a material fact, section 12(2). Moreover, the limitations periods contained in both statutes are virtually identical. Actions for the sale of securities by means of an untrue statement of material fact are subject to the one-year and three-year provisions of section 11-703(f) under state law, and the same one-year and three-year provisions of section 13 under federal law. Both statutes commence the running of the one-year period from the date the untrue statement or omission was discovered, or should have been discovered by the exercise of reasonable diligence, and the" }, { "docid": "18657307", "title": "", "text": "is discovered, though there be no special circumstances or efforts on the part of the party com mitting the fraud to conceal it from the knowledge of the other party.” Bailey v. Glover, 21 Wall. 342, 348 [22 L.Ed. 636]; and see Exploration Co. v. United States, 247 U.S. 435 [38 S.Ct. 571, 62 L.Ed. 1200]; Sherwood v. Sutton, 5 Mason 143. This equitable doctrine is read into every federal statute of limitation. Plaintiffs also cite several cases in which section 13 was tolled because of the concealment of a cause of action from plaintiffs. Katz v. Amos Treat & Co., 411 F.2d 1046, 1055 (2d Cir.1969); Ingénito v. Bermec Corp., 441 F.Supp. 525, 553 (S.D.N.Y. 1977); Houlihan v. Anderson-Stokes, Inc., 434 F.Supp. 1319, 1322-23 (D.D.C.1977). In all of these cases, however, the alleged violation occurred within three years of the filing of the complaint. The statute was tolled only insofar as it allowed claims to be brought more than one year after the fraud. Only one case cited by plaintiffs directly supports their argument. In re Home-Stake Production Company Securities Litigation, 76 F.R.D. 337, 344-45 (N.D.Okla.1975). This is decidedly the minority view. All other courts which have considered the question have ruled that section 13 imposes an absolute time bar of three years. See, e.g., Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir.1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3485, 73 L.Ed.2d 1367 (1982); Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899 (E.D.Wisc.1978); Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 289-91 (W.D.N.Y.1977); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394, 397 (M.D.La.1974). I find the majority view persuasive. If the three-year limit could be tolled, section 13 “would create a limitation period for all suits of one year from the time discovery of the untrue statements or omissions should have been made, and the three-year provision would serve no purpose at all.” Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. at 911. Plaintiffs’ first and second claims" }, { "docid": "14180855", "title": "", "text": "application of the doctrine. First, the causes of action under sections 5, 12(1), and 15 are not themselves in the nature of fraud. See LeCroy, supra, at 758-59; Ingenito v. Bermec Corporation, 441 F.Supp. 525, 553 n. 26 (S.D.N.Y.1977). Thus, plaintiffs must show that defendants fraudulently concealed the fact that the Mountainview and Newport securities were not registered. Cf. Ingenito, supra. Here, plaintiffs have made several allegations with respect to defendants’ fraudulent concealment of material facts. Upon close inspection, however, it is clear that none of the allegations concern the concealment of the fact the securities were unregistered. Indeed, the subscription agreements for Mountainview and Newport securities each contained a specific provision informing the investor that the securities had not been registered under the Securities Act of 1933. (Cohen Affidavit Exhibits D-G.) Morley and Evans each signed a subscription agreement for Mountainview and Newport securities, and are therefore charged with the knowledge that the securities were unregistered. Second, several courts have concluded that the three-year limitations period contained in section 13 is absolute, and the normal tolling rules are not applicable to toll the three-year period. See, e.g., Admiralty Fund v. Hugh Johnson & Co., Inc., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir. 1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3485, 73 L.Ed.2d 1367 (1982); Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 291 (W.D.N.Y.1977). The unambiguous language of section 13 persuades this Court that the three-year period represents the outside limits for instituting suit under sections 5, 12, and 15, and expiration of that period precludes the application of the equitable tolling doctrine. Accordingly, the claims under sections 5(a), 12(1), and 15 are time-barred and will be dismissed. Count III Count III of the amended complaint proceeds against all defendants and alleges violations of sections 12(2), 15, and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 771 (2), 77o, & 77q(a) (1982); and §§ 10(b), 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) & 78t (1982); and Rule 10(b)(5)." }, { "docid": "14180863", "title": "", "text": "several provisions of the Maryland blue sky law, including actions for the sale of unregistered securities, section 11-501, and actions for the sale of securities by means of any untrue statement of a material fact, section ll-703(a)(l)(ii). In this respect, section ll-703(f) is strikingly similar to section 13 of the Securities Act of 1933. Indeed, section 13 also provides the limitations period for claims arising from the sale of unregistered securities, section 12(1), and the sale of securities by means of any untrue statement of a material fact, section 12(2). Moreover, the limitations periods contained in both statutes are virtually identical. Actions for the sale of securities by means of an untrue statement of material fact are subject to the one-year and three-year provisions of section 11-703(f) under state law, and the same one-year and three-year provisions of section 13 under federal law. Both statutes commence the running of the one-year period from the date the untrue statement or omission was discovered, or should have been discovered by the exercise of reasonable diligence, and the three-year period from the date of sale. Under both statutes, the one-year and three-year periods are cumulative, not alternative. A cause of action must be timely under both periods or it is time-barred. See LeCroy v. Dean Witter Reynolds, Inc., 585 F.Supp. 753, 760 (E.D.Ark.1984) (section 13); cf. O’Hara v. Kovens, 60 Md.App. 619, 484 A.2d 275, 276-77 (1984) (section ll-703(f)). In the absence of any Maryland decisions interpreting section 11-703© in its present form, the similarity between the state and federal provisions convinces this Court that the decisions interpreting section 13 are relevant to any interpretation of section 11-703©. In particular, the Court is concerned with those decisions which have con-eluded that Congress intended the three-year provision in section 13 to be an absolute limitation, the running of which cannot be tolled by the equitable tolling doctrine. See, e.g., Admiralty Fund v. Hugh Johnson & Company, Inc., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land Leisure, Inc., 664 F.2d 965, 968 (5th Cir.1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d" }, { "docid": "14180865", "title": "", "text": "1367 (1982). But see In Re Home-Stake Production Company Securities Utigation, 76 F.R.D. 337, 344-45 (N.D.Okl.1975). The Court concludes, therefore, that the three-year period contained in section 11-703© is also an absolute outside limit on commencing suit under Maryland’s blue sky law. This position is buttressed by the anomalous situation which would result from application of the equitable tolling doctrine to section 11-703©. Essentially, under plaintiffs’ theory, the statute would read: A person may not sue under this section after the earlier to occur of (1) three years after the discovery of the untrue statement or omission, or after the discovery should have been made by the exercise of reasonable diligence; or (2) one year after the discovery of the untrue statement or omission, or after the discovery should have been made by the exercise of reasonable diligence. The absurdity of this interpretation is manifest. It has the effect of rendering the state statute of limitations null and void, inasmuch as the three-year period will never cpme into play. Under the present Gregorian calendar system, one year from discovery will always occur earlier than three years from discovery. The Court cannot and will not countenance a result such as this, which essentially renders the borrowing of the state statute meaningless. Accordingly, the Court concludes that plaintiffs’ claims under sections 17(a), 10(b), and 20(a), and Rule 10(b)(5) are time-barred under the three-year statute of limitation contained in MD.CORPS. & ASS’NS CODE ANN. § 11-703(f). Pendent Jurisdiction Before turning to the state law claims, it is necessary to determine what, if any, effect the dismissal of two of the three federal claims will have upon the Court’s exercise of pendent jurisdiction over the state claims. The lone remaining federal claim is the RICO count. This claim proceeds only against Cohen, Halajen, Mountainview, and Newport. The state law claims which proceed against these defendants all arise out of the same alleged acts which constitute the predicate acts for the RICO claims. To succeed on the RICO claim plaintiffs will necessarily have to establish the commission of the predicate acts. Much of this proof" }, { "docid": "18657308", "title": "", "text": "In re Home-Stake Production Company Securities Litigation, 76 F.R.D. 337, 344-45 (N.D.Okla.1975). This is decidedly the minority view. All other courts which have considered the question have ruled that section 13 imposes an absolute time bar of three years. See, e.g., Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir.1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3485, 73 L.Ed.2d 1367 (1982); Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899 (E.D.Wisc.1978); Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 289-91 (W.D.N.Y.1977); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394, 397 (M.D.La.1974). I find the majority view persuasive. If the three-year limit could be tolled, section 13 “would create a limitation period for all suits of one year from the time discovery of the untrue statements or omissions should have been made, and the three-year provision would serve no purpose at all.” Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. at 911. Plaintiffs’ first and second claims are therefore dismissed. B. Counts 3, 4, 5 and 13 Count 3 is based on section 17 of the Securities Act (15 U.S.C. § 77q). Count 4 is based on section 15(c)(1) of the Exchange Act (15 U.S.C. § 78o (c)(1)). Count 5 is based on section 10(b) of the Exchange Act (15 U.S.C. § 78j(b)) and Rule 10b-5 (C.F.R. § 240.10b-5). Count 13 is based on RICO (18 U.S.C. § 1964(c)). None of these statutes is subject to an express federal statute of limitations; both sides agree that the applicable statute of limitations is Conn. Gen.Stat. § 36-498(e). See Dandorph v. Fahnstock & Co., 462 F.Supp. 961, 963 n. 4 (D.Conn.1979). That section provides, “No person may sue under this section more than two years after the contract of sale.” Defendants contend that plaintiffs’ claims are barred as they were not brought within two years of the contracts of sale of securities. Plaintiffs, however, argue that in determining when the limitations period begins, this court must look to federal law, rather than the Connecticut" }, { "docid": "10069818", "title": "", "text": "held “that the three-year period begins to run from the date the security is first offered to the public.” Waterman v. Alta Verde Indus., 643 F.Supp. 797, 808 (E.D.N.C.1986) (emphasis in original); accord Fischer v. International Tel. & Tel. Corp., 391 F.Supp. 744, 747 (E.D.N.Y.1975). This period is an absolute outer limitation. Bresson v. Thomson McKinnon Sec., Inc., 641 F.Supp. 338, 343 (S.D.N.Y.1986) (section 11); Clute v. Davenport Co., 584 F.Supp. 1562, 1576-77 (D.Conn.1984) (section 12(1)); accord Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1308 (9th Cir.1982) (section 11); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir. Unit B Dec. 1981) (section 11), cert. denied, 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982). Construing the complaint liberally in plaintiffs’ favor, it would appear the latest date shares in Arlington first could have been offered to the public is August, 1975. Thus, the statute of limitations on these claims lapsed at the latest in August, 1978. As this action was not filed until 1986, the claims under sections 11 and 12(1) of the ’33 Act appear to be time-barred. Section 13 states that, for actions based on section 12(2), “[i]n no event shall any ... action be brought to enforce a liability created ... under section 771(2) [section 12(2)] of this title more than three years after the sale.” 15 U.S.C. § 77m (1982). Again, this bar is absolute. Bresson, 641 F.Supp. at 343; Brick, 442 F.Supp. at 291. Plaintiffs admit that they purchased their share in Arlington in September, 1975. Thus, the allowable period for filing this claim would appear to have lapsed at the latest in September, 1978. The plaintiffs argue, however, that the principle of equitable estoppel, as opposed to the doctrine of equitable tolling, applies to prevent the defendants from asserting the defense of the statutes of limitations on all of their federal claims, including these securities claims. Equitable estoppel is a doctrine based on the principle that a wrongdoer may not take advantage of his own wrong. See Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231," }, { "docid": "14180856", "title": "", "text": "normal tolling rules are not applicable to toll the three-year period. See, e.g., Admiralty Fund v. Hugh Johnson & Co., Inc., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir. 1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3485, 73 L.Ed.2d 1367 (1982); Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 291 (W.D.N.Y.1977). The unambiguous language of section 13 persuades this Court that the three-year period represents the outside limits for instituting suit under sections 5, 12, and 15, and expiration of that period precludes the application of the equitable tolling doctrine. Accordingly, the claims under sections 5(a), 12(1), and 15 are time-barred and will be dismissed. Count III Count III of the amended complaint proceeds against all defendants and alleges violations of sections 12(2), 15, and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 771 (2), 77o, & 77q(a) (1982); and §§ 10(b), 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) & 78t (1982); and Rule 10(b)(5). Defendants maintain that each of these alleged causes of action is time-barred by the applicable statute of limitations. Defendants further assert that Fourth Circuit case law establishing the existence of a private cause of action under section 17(a) of the 1933 Act should be reevaluated in light of recent Supreme Court decisions limiting judicial implication of private causes of action. Turning first to the limitations issue, the Court concludes that plaintiffs’ actions under section 12(2) and 15 are time-barred under section 13, 15 U.S.C. § 77m (1982). Section 13 provides that no action under section 12(2) may be brought more than one year after the discovery of the untrue statement or omission, or after such discovery should have been made by the exercise of reasonable diligence. Section 13 further provides that in no event shall an action under section 12(2) be maintained more than three years after the sale. As previously noted, plaintiffs must plead compliance with both the one-year and three-year provisions to state a claim under section 12(2). See LeCroy, supra, at 760;" }, { "docid": "10069880", "title": "", "text": "to profit from his own wrongdoing in a court of justice. Bomba, 579 F.2d at 1070. The court applied equitable estoppel principles because other courts had held that equitable tolling principles did not apply to the statute of limitations of the statute in question. Id. at 1069-71. . The courts have held that the doctrine of equitable tolling does not apply to section 13’s three-year limitation. See, e.g., Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir. Unit B Dec. 1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982); Turner v. First Wis. Mortgage Trust, 454 F.Supp. 899, 911 (E.D.Wis.1978); Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 289-91 (W.D.N.Y.1977); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394, 396-97 (M.D.La. 1974). Some of these cases have stated that In re Home-Stake Production Company Securities Litigation, 76 F.R.D. 337 (N.D.Okla.1975), reaches a contrary result. See Admiralty Fund, 677 F.2d at 1308. In reality, the court in Home-Stake used equitable estoppel against the defendants. See 76 F.R.D. at 342, 344-45. True equitable tolling does not depend on fraudulent concealment. See supra footnote 6. In Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946), the Court stated that equitable tolling \"is read into every federal statute of limitation.\" 327 U.S. at 397, 66 S.Ct. at 585. Similarly, in Exploration Co. v. United States, 247 U.S. 435, 38 S.Ct. 571, 62 L.Ed. 1200 (1918), the Court applied the doctrine of Bailey v. Glover, stating that it could not \"believe that Congress intended to give immunity to those who for the period named in the statute might be able to conceal their fraudulent action.” Id. at 449, 38 S.Ct. at 574. With section 13, however, there is a clear expression of congressional intent that tolling not apply. When Congress debated the '34 Act, it amended section 13, reducing its time periods, to conform to similar provisions in the ’34 Act. 78 Cong.Rec. 8197-8203 (1934). Senator Norris strenuously objected to" }, { "docid": "6940295", "title": "", "text": "action. On the other hand, the first cause of action is based on alleged violations that occurred in September, 1980, more than three years prior to the commencement of this action. Although some courts have applied the equitable tolling doctrine to the three-year limitation in section 13, see, e.g., In re Home-Stake Production Co. Securities Litigation, 76 F.R.D. 337, 344-45 (N.D.Okl.1975), most courts have concluded that Congress meant the three-year bar to be absolute. See, e.g., Securities and Exchange Commission v. Seaboard Corp., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir. 1981), cert. den., 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982); Benoay v. Decker, 517 F.Supp. 490, 496 (E.D.Mich. 1981). In Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036 (10th Cir.1980), the Tenth Circuit held that a three-year limitations period in the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 171(1), which was patterned after and contains language nearly identical to section 13, was absolute and could not be tolled with evidence of fraudulent concealment. See id. at 1042-43. The Aldrich court further concluded that evidence that the defendants had induced the plaintiffs to forego suit once the basis for the action was known might create an equitable estoppel preventing the defendants from asserting the statutory limitation. See id. at 1043 n. 7; accord Darms v. McCulloch Oil Corp., 720 F.2d 490, 494 (8th Cir.1983). This court agrees with the reasoning in Aldrich and concludes that the three-year limitation in section 13 is absolute, although a defendant may be equitably estopped from asserting the limitation. Paragraph eighteen of plaintiffs’ complaint states: Defendants and each of them fraudulently concealed the violation of the Securities Act complained in this cause of action by falsely stating to offerees and purchasers of said securities that said securities were exempt from registration. That allegation is expressly couched in terms of fraudulent concealment. Plaintiffs have not alleged that the defendants induced them to forego suit after the basis for the action was known and therefore the allegation in no way can be" }, { "docid": "10069879", "title": "", "text": "which the running of the limitations period may be suspended.” 579 F.2d at 1070. Equitable tolling may apply \"though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.\" Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636 (1875), quoted in Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946). In contrast, equitable estoppel is not concerned with the running and suspension of the limitations period, but rather comes into play only after the limitations period has run and addresses itself to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forebearing suit within the applicable limitations period. Its application is wholly independent of the limitations period and takes its life, not from the language of the statute, but from the equitable principle that no man will be permitted to profit from his own wrongdoing in a court of justice. Bomba, 579 F.2d at 1070. The court applied equitable estoppel principles because other courts had held that equitable tolling principles did not apply to the statute of limitations of the statute in question. Id. at 1069-71. . The courts have held that the doctrine of equitable tolling does not apply to section 13’s three-year limitation. See, e.g., Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir. Unit B Dec. 1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982); Turner v. First Wis. Mortgage Trust, 454 F.Supp. 899, 911 (E.D.Wis.1978); Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 289-91 (W.D.N.Y.1977); Cowsar v. Regional Recreations, Inc., 65 F.R.D. 394, 396-97 (M.D.La. 1974). Some of these cases have stated that In re Home-Stake Production Company Securities Litigation, 76 F.R.D. 337 (N.D.Okla.1975), reaches a contrary result. See Admiralty Fund, 677 F.2d at 1308. In reality, the" }, { "docid": "7359770", "title": "", "text": "running of the limitations period. Emphatically, Congress opted for the absolute bar. While there may be circumscribed settings in which the doctrine of equitable estoppel might apply to claims governed by Section 13, we believe the more accurate analysis excludes the application of this doctrine when the consequence operates to trump a clear outer limit intended by Congress. “Unless the ‘in no event more than three’ language cuts off claims of tolling and estoppel at three years, however, it serves no purpose at all — what other function could be served by such language in a statute that starts the time on discovery?” Short v. Belleville Shoe, 908 F.2d at 1391. We therefore conclude that the doctrine of equitable estoppel is not available to avoid the statute of repose established by Section 13. Indeed, except for Home-Stake, there is virtual uniformity in holding the three-year limit as an absolute bar to suit. See, e.g., Short v. Belleville Shoe, 908 F.2d at 1393; S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir. Unit B Dec.1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3485, 73 L.Ed.2d 1367 (1982). This harmony effectuates the remedial scheme created to enforce the rights given by the 1933 Act. In the Anixter Action, plaintiffs alleged they did not discover defendants’ fraud until March 1973. Nevertheless, without notice, plaintiffs had only three years from the date plaintiffs purchased their POCs in which to file suit. Thus, we conclude as a matter of law, plaintiff class representatives for the 1964, 1965, 1966, 1967, 1968, and 1969 POCs, William Dennler, John D. Lockton, Ted Westfall, William Mortenson, William D. Robertson, and Thomas Thor-ner, respectively, were barred from suit by the three-year statute of repose. Neither equitable tolling nor equitable estoppel can salvage their claims. The more difficult issue remains, however, whether suit was timely filed by the 1970, 1971, and 1972 class representatives, William Grohne, Beatrice Warren, and Joseph C. Bennett. That question can only be answered by determining when plaintiffs knew or should have known with" }, { "docid": "14180861", "title": "", "text": "because liability of controlling persons under section 20(a) is derived from the liability of the controlled person, the same limitation period should apply to section 20(a) violations as that which applies to those provisions allegedly violated by the controlled person. Cf. Herm v. Stafford, supra. In the present case, therefore, the limitations periods contained in section ll-703(f) also apply to plaintiffs’ claims under section 20(a) of the Securities Exchange Act of 1934. Section ll-703(f) provides in pertinent part: (1) A person may not sue under this section after the earlier to occur of three years after the contract of sale or purchase or (2) ... (ii) ... one year after the discovery of the untrue statement or omission, or after the discovery should have been made by the exercise of reasonable diligence. MD.CORPS. & ASS’NS CODE ANN. § 11-703(f) (1975 & Cum.Supp.1984). Accepting arguendo plaintiffs’ contention that they could not have discovered defendants’ fraud until 1983, plaintiffs claims are nevertheless time-barred under the three-year provision of section 11-703(f)(2)(ii). This suit was instituted more than seven years after the contract of sale of the Mountainview securities and more than six years after the contract of sale of the Newport securities. Plaintiffs again argue, however, that the federal equitable tolling doctrine tolls the running of section ll-703(f) until plaintiffs knew or should have known of defendants’ fraud. Plaintiffs’ argument raises the question: To what extent do federal tolling provisions govern the running of state statutes of limitation “borrowed” for federal actions cognizable only in federal courts? “Without launching into an exegesis on the nice distinctions that have been drawn in applying state and federal law in this area, ... it suffices to say that [plaintiffs have] overstated [their] case.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975) (footnotes omitted). Whether or not the federal equitable tolling doctrine generally tolls a state statute of limitations borrowed for a federal cause of action, the doctrine has no application to the facts of this case for several reasons. Section ll-703(f) provides the limitations periods for" }, { "docid": "14180859", "title": "", "text": "of defendants’ fraud. Plaintiffs maintain that they did not know, nor should have known, of the fraud until 1983. Thus, plaintiffs reason, the present action, filed in 1983, is timely under both the one-year and three-year periods. As previously discussed, however, the three-year period represents the outside limit for bringing suit under sections 12 and 15, and expiration of that period precludes the application of the equitable tolling doctrine. See, e.g., Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir.1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3485, 73 L.Ed.2d 1367 (1982). Plaintiffs’ remaining Count III claims involve several difficult issues. Neither the Securities Act of 1933, nor the Securities Exchange Act of 1934, provide a statute of limitations for claims under section 17(a) (1933 Act) or sections 10(b), 20(a), and Rule 10(b)(5) (1934 Act). Therefore, the Court is required to apply an analogous statute of limitations of the forum state to the federal claims. Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); O’Hara v. Kovens, 625 F.2d 15, 17 (4th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981). “The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles.” Holmberg v. Armbrecht, supra, 327 U.S. at 395, 66 S.Ct. at 584. The Fourth Circuit and this Court have concluded that Maryland’s blue sky law is most analogous to the federal securities laws. Thus, the Courts have consistently applied the limitations periods contained in MD.CORPS. & ASS’NS CODE ANN. § 11-703(f) to actions under sections 17(a), 10(b), and Rule 10(b)(5). See, e.g., O’Hara v. Kovens, supra, (§ 10(b)); Fox v. Kane-Miller Corporation, 542 F.2d 915, 918 (4th Cir.1976) (Rule 10(b)(5)); Sasso v. Koehler, 445 F.Supp. 762, 768 (D.Md.1978) (§ 17(a), § 10(b), and Rule 10(b)(5); cf. Newman v. Prior, 518 F.2d 97, 99 (4th Cir.1975) (Virginia blue sky law applicable to § 17(a) claims). Furthermore," }, { "docid": "6940294", "title": "", "text": "90 L.Ed. 743 (1946); see Esplin v. Hirschi, 402 F.2d 94, 103 (10th Cir.), cert. den., 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969). The doctrine “is grounded in the fraudulent concealment of the harm which gives rise to the right to sue,” Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1043 n. 7 (10th Cir.1980), and provides that the limitations period does not begin to run “until the fraud is or should have been discovered,” Vanderboom v. Sexton, 422 F.2d 1233, 1240 (8th Cir.), cert. den., 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). The equitable tolling doctrine has been applied in section 12(1) cases with facts like those alleged here. See, e.g., Houlihan v. Anderson-Stokes, Inc., 434 F.Supp. 1319 (D.D.C.1977). Plaintiffs’ equitable tolling argument, however, fails to distinguish the separate issues raised by each of the causes of action based on section 12(1). The twelfth cause of action is based on alleged violations that occurred in June and September, 1981, within three years prior to the commencement of this action. On the other hand, the first cause of action is based on alleged violations that occurred in September, 1980, more than three years prior to the commencement of this action. Although some courts have applied the equitable tolling doctrine to the three-year limitation in section 13, see, e.g., In re Home-Stake Production Co. Securities Litigation, 76 F.R.D. 337, 344-45 (N.D.Okl.1975), most courts have concluded that Congress meant the three-year bar to be absolute. See, e.g., Securities and Exchange Commission v. Seaboard Corp., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir. 1981), cert. den., 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982); Benoay v. Decker, 517 F.Supp. 490, 496 (E.D.Mich. 1981). In Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036 (10th Cir.1980), the Tenth Circuit held that a three-year limitations period in the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 171(1), which was patterned after and contains language nearly identical to section 13, was absolute and could not be tolled with" }, { "docid": "14180864", "title": "", "text": "three-year period from the date of sale. Under both statutes, the one-year and three-year periods are cumulative, not alternative. A cause of action must be timely under both periods or it is time-barred. See LeCroy v. Dean Witter Reynolds, Inc., 585 F.Supp. 753, 760 (E.D.Ark.1984) (section 13); cf. O’Hara v. Kovens, 60 Md.App. 619, 484 A.2d 275, 276-77 (1984) (section ll-703(f)). In the absence of any Maryland decisions interpreting section 11-703© in its present form, the similarity between the state and federal provisions convinces this Court that the decisions interpreting section 13 are relevant to any interpretation of section 11-703©. In particular, the Court is concerned with those decisions which have con-eluded that Congress intended the three-year provision in section 13 to be an absolute limitation, the running of which cannot be tolled by the equitable tolling doctrine. See, e.g., Admiralty Fund v. Hugh Johnson & Company, Inc., 677 F.2d 1301, 1308 (9th Cir.1982); Summer v. Land Leisure, Inc., 664 F.2d 965, 968 (5th Cir.1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982). But see In Re Home-Stake Production Company Securities Utigation, 76 F.R.D. 337, 344-45 (N.D.Okl.1975). The Court concludes, therefore, that the three-year period contained in section 11-703© is also an absolute outside limit on commencing suit under Maryland’s blue sky law. This position is buttressed by the anomalous situation which would result from application of the equitable tolling doctrine to section 11-703©. Essentially, under plaintiffs’ theory, the statute would read: A person may not sue under this section after the earlier to occur of (1) three years after the discovery of the untrue statement or omission, or after the discovery should have been made by the exercise of reasonable diligence; or (2) one year after the discovery of the untrue statement or omission, or after the discovery should have been made by the exercise of reasonable diligence. The absurdity of this interpretation is manifest. It has the effect of rendering the state statute of limitations null and void, inasmuch as the three-year period will never cpme into play. Under the present Gregorian calendar system," }, { "docid": "14180884", "title": "", "text": "Courts and Judicial Proceedings section 5-101. O’Hara v. Kovens, 473 F.Supp. 1161, 1167 (D.Md.1979), affd, 625 F.2d 15 (4th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981). Additionally, the discovery of the wrong rule adopted by the Maryland Court of Appeals in Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981), is inapplicable to section ll-703(f). Mills v. International Harvester Co., 554 F.Supp. 611, 613 (D.Md.1982). Plaintiffs have offered no other possible tolling provisions applicable to section 11-703(f). Accordingly, plaintiffs’ Count IV claims will be dismissed as untimely. Count V In light of the Court’s previous ruling with respect to personal jurisdiction over the pendent party defendants, Count Count Claim VI Negligent Misrepresentation VII Breach of Fiduciary Duty VIII Breach of Contract V now proceeds only against Cohen, Halajen, Mountainview, Newport, and Baker, Watts for alleged violations of sections 11-301 and ll-703(a)(l)(ii) of the Maryland Securities Act. MD.CORPS. & ASS’NS CODE ANN. § 11-101 et seq. (1975 & 1984 Cum.Supp.). Essentially, these sections prohibit the sale of securities by means of fraud, untrue statements of material facts, or omissions of material facts. Defendants argue that these claims are time-barred under the one-year limitation period in section ll-703(f). Plaintiffs again maintain that the claims were interposed within the requisite time period following the discovery of the defendants’ fraud. While section ll-703(f) applies the same three-year period to actions brought under the antifraud provisions of 11-703 and 11-301, the applicable one-year period varies from that applied to the Count IV claims, in that it begins to run from the date of discovery of the untrue statement or omission, or the date discovery should have been made by the exercise of reasonable diligence. This variation has little significance in the present case, because plaintiffs’ Count V claims are untimely under the absolute three-year limitation period. As previously discussed, no tolling provisions are applicable to the three-year period. Accordingly, the Count V claims will be dismissed as untimely. Counts VI through XVI To understand the variety of common-law claims asserted in Counts VI through XVI and the myriad" }, { "docid": "10069817", "title": "", "text": "instituted.”); Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 291-92 (W.D.N.Y.1977) (compliance with section 13 “is an essential substantive ingredient of a private cause of action” based on the sections it relates to); accord Adair v. Hunt Int’l Resources Corp., 526 F.Supp. 736, 748-49 (N.D.Ill.1981). This notwithstanding, the court elects to proceed to consider whether summary judgment is appropriate as to these claims. Section 13 provides that ordinarily an action under section 11 or section 12(2) must be brought within one year after the actual or constructive discovery of the false or misleading statement. See 15 U.S.C. § 77m (1982). An action under section 12(1) normally must be brought within one year after the violation on which it is based occurs. Id. The section further provides that “[i]n no event shall any ... action be brought to enforce a liability created under section 77k [section 11] or 771(1) [section 12(1)] of this title more than three years after the security was bona fide offered to the public.” Id. The majority of courts have held “that the three-year period begins to run from the date the security is first offered to the public.” Waterman v. Alta Verde Indus., 643 F.Supp. 797, 808 (E.D.N.C.1986) (emphasis in original); accord Fischer v. International Tel. & Tel. Corp., 391 F.Supp. 744, 747 (E.D.N.Y.1975). This period is an absolute outer limitation. Bresson v. Thomson McKinnon Sec., Inc., 641 F.Supp. 338, 343 (S.D.N.Y.1986) (section 11); Clute v. Davenport Co., 584 F.Supp. 1562, 1576-77 (D.Conn.1984) (section 12(1)); accord Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1308 (9th Cir.1982) (section 11); Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir. Unit B Dec. 1981) (section 11), cert. denied, 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982). Construing the complaint liberally in plaintiffs’ favor, it would appear the latest date shares in Arlington first could have been offered to the public is August, 1975. Thus, the statute of limitations on these claims lapsed at the latest in August, 1978. As this action was not filed until 1986, the claims under" }, { "docid": "9859091", "title": "", "text": "December 1980, but did not bring suit to challenge the allegedly unlawful and misleading sale of unregistered securities until September 1984. The applicable limitations provision reads as follows: No action shall be maintained to enforce any liability created under section ... Ill (2) [section 12(2) of the 1933 Act] of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability created under section 111 (1) [section 12(1) of the 1933 Act, which prohibits violations of section 5, 15 U.S.C. § 77e] of this title, unless brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability created under section ... Ill(1) of this title more than three years after the security was bona fide offered to the public, or under section 111(2) of this title more than three years after the sale. 15 U.S.C. § 77m. This provision creates an absolute bar, and the normal tolling rules are not applicable to toll the three-year period. Summer v. Land & Leisure, Inc., 664 F.2d 965, 968 (5th Cir.1981), cert. denied, 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982). Because more than three years elapsed between the offer and sale and the filing of suit, these claims have expired. The investors’ claims under section 17(a) of the 1933 Act and under the Investment Advisers Act of 1940 were properly dismissed because the investors had no private causes of action under these provisions. This circuit has refused to imply a private cause of action under section 17(a), holding that this “general censure of fraudulent practices” does not meet the test of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (outlining a four-part test for determining when a private remedy is to be implied from a federal statute). Landry v. All American Assurance Co., 688 F.2d 381, 384-91 (5th Cir.1982). Similarly, the Supreme" } ]

[ { "docid": "22755283", "title": "", "text": "claimed that a medical school’s admissions program, which reserved 16 of the 100 places in the entering class for minority applicants, was inconsistent with the Equal Protection Clause. Addressing the argument that the applicant lacked standing to challenge the program, Justice Powell concluded that the “constitutional requirements of Art. Ill” had been satisfied, because the requisite “injury” was the medical school’s “decision not to permit Bakke to compete for all 100 places in the class, simply because of his race.” Id., at 281, n. 14 (emphasis added) (principal opinion). Thus, “even if Bakke had been unable to prove that he would have been admitted in the absence of the special program, it would not follow that he lacked standing.” Id., at 280-281, n. 14 (emphasis added). This portion of Justice Powell’s opinion was joined by four other Justices. See id., at 272. Singly and collectively, these cases stand for the following proposition: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. See, e. g., Turner v. Fouche, supra, at 362 (‘We may assume that the [plaintiffs] have no right to be appointed to the ... board of education. But [they] do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications”) (footnote omitted) (emphasis added). And in the context of a challenge to a set-aside program, the “injury in fact” is the inability to compete on an equal footing in the bidding process, not the loss of a contract. See Croson, 488 U. S., at 493 (principal opinion of O’Connor, J.) (“The [set-aside program] denies certain citizens the opportunity to" } ]

[ { "docid": "22882154", "title": "", "text": "tors possessed standing because the requisite injury was the inability to compete equally for contracts simply because the contractors were neither black nor Hispanic. See id. at 666-68, 113 S.Ct. at 2303-04. In Bakke, Bakke was denied admission to medical school because he was white, and the Court held that this denial constituted the requisite injury because Bakke was not “permitted] ... to compete for all 100 places in the class simply because of his race.” Bakke, 438 U.S. at 281 n. 14, 98 S.Ct. at 2743 n. 14. Thus, “even if Bakke had been unable to prove that he would have been admitted in the absence of the special program, it would not follow that he lacked standing.” Id. at 280-81 n. 14, 98 S.Ct. at 2743 n. 14. Just as Bakke suffered injury, the Northeastern Court held the contractors suffered injury in fact because they were denied equal protection: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. Northeastern, 508 U.S. at 666, 113 S.Ct. at 2303. Specifically applied to set-aside programs, the “ ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract.” Id. Rounding out the Carey-Stachurar-North-eastem trilogy for recovering damages based on a § 1983 equal protection claim is Ada-rand Constructors, Inc. v. Pena, — U.S. -, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Adarand challenged a federal set-aside program that awarded government contracts to businesses owned by minorities, regardless of whether the minority-owned business submitted the lowest bid, contending that this program violated the Equal Protection Clause. See id. at-," }, { "docid": "23564698", "title": "", "text": "that “Native American Spirituality” was a religion protected by the First Amendment and that he had come forward with sufficient evidence to preclude summary judgment on the issue of whether his beliefs were sincerely held. However, the district court dismissed Morrison’s free exercise claim because Morrison failed to identify a particular rite or practice which was foreclosed, or substantially burdened by, defendants’ denial of his request for Native American religious items. Morrison has not appealed this adverse ruling. Morrison’s equal protection claim, in contrast, centers not on whether Morrison’s religious exercise rights were violated by defendants’ denial of his request. Rather, Morrison’s equal protection claim rests upon defendants’ decision to condition the mere consideration of his request for Native American religious items upon proof that he is of Native American race, without regard to whether he is sincere in his religious beliefs or whether the requested items pose a security risk for the prison. In other words, Morrison pursues not a constitutional right to obtain the religious items, but a constitutional right to be treated the same as Native American inmates requesting the same religious articles. The district court’s injunction recognizes this distinction and narrowly tailors the injunction to the race-based conduct. Defendants are not required to allow Morrison to obtain the religious articles he has requested or which he may request in the future. Rather, the district court only enjoined the defendants from using race as the sole factor in their determination of whether Morrison would be granted an exemption from the personal property restrictions. Also, Morrison need not prove that he would ultimately receive the items in order to obtain an injunction from further application of the race-based aspect of the policy to him. See Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 468, 145 L.Ed.2d 347 (1999). “[A] plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered.” Id. Rather, the relevant inquiry is whether there has been an “ ‘inability to compete on an equal footing.’ ”" }, { "docid": "20635143", "title": "", "text": "for plaintiffs bringing facial challenges to race-conscious set-aside programs. In Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 658, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993), the Court found that a group of contractors had standing to challenge a city ordinance establishing a minority set-aside program even though none of the contractors had actually bid for any contract. The Court reasoned that: [w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. And in the context of a challenge to a set-aside program, the “injury in fact” is the inability to compete on an equal footing in the bidding process, not the loss of a contract. To establish standing, therefore, a party challenging a set-aside program like Jacksonville’s need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis. Id. at 666, 113 S.Ct. 2297 (internal citations omitted). In Adamnd Constructors, Inc. v. Pena, the Court reaffirmed that contractors have standing to press facial challenges to race-conscious statutory regimes, at least so long as those contractors “ha[ve] made an adequate showing that sometime in the relatively near future [they] will bid on another Government contract.” Adarand, 515 U.S. at 211, 115 S.Ct. 2097. We see no basis for distinguishing between contractors and job applicants. Because job applicants, like contractors, must compete to obtain a benefit, they too have standing to challenge statutory set-aside programs. Cf. Texas v. Lesage, 528 U.S. 18, 21, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (suggesting that applicants to graduate" }, { "docid": "22882155", "title": "", "text": "members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. Northeastern, 508 U.S. at 666, 113 S.Ct. at 2303. Specifically applied to set-aside programs, the “ ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract.” Id. Rounding out the Carey-Stachurar-North-eastem trilogy for recovering damages based on a § 1983 equal protection claim is Ada-rand Constructors, Inc. v. Pena, — U.S. -, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). Adarand challenged a federal set-aside program that awarded government contracts to businesses owned by minorities, regardless of whether the minority-owned business submitted the lowest bid, contending that this program violated the Equal Protection Clause. See id. at-, 115 S.Ct. at 2104. In addition to seeking declaratory and in-junctive relief to prevent future discrimination, Adarand sought compensatory damages for losing a contract that went to a hispanie-owned business. The Government asserted that the program was constitutional and asserted further that Adarand lacked standing to .sue for future relief. See id. Holding that Adarand had suffered injury in fact with respect to both compensatory and declaratory or injunctive relief, the Supreme Court rejected the Government’s contention: [W]e must consider whether Adarand has standing to seek forward-looking relief. Adarand’s allegation that it has lost a contract in the past because of a subcontractor compensation clause of course entitles it to seek damages for the loss of that contract_ But as we explained [previously,] the fact of past injury “while presumably affording[the plaintiff] standing to claim damages ..., does nothing to establish a real and immediate threat that he would again” suffer similar injury in the future. Id. (quoting Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 1666-67, 75 L.Ed.2d 675 (1983)) (second" }, { "docid": "22569875", "title": "", "text": "be perfectly safe, and so must determine the level of risk they are willing to take. Deciding whether a given activity is sufficiently \"safe” thus requires balancing the acceptability (in both moral and financial terms) of a certain degree of risk against the costs of avoiding the risk and the company's human resources needs. . I note that to recognize that Oloyede and Habib suffer a discriminatory wrong when they are rendered ineligible to compete for a driver job by being barred from becoming candidates for the job is consistent with anti-discrimination law generally. In Regents of the University of California v. Bakke, 438 U.S. 265, 281 n. 14, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), the Supreme Court rejected the notion that Bakke, who was challenging medical school admissions affirmative action policies that he contended discriminated against him, was required to “prove that he would have been admitted in the absence of the [policies]” to have standing to challenge them. Rather, \"the University's decision not to permit Bakke to compete for all 100 places in his class, simply because of his race,” satisfied the injury requirement. Id. Similarly, in Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville, 508 U.S. 656, 664, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993), a contractor group could challenge a city’s affirmative action policy without having to show that \"one or more of its members would have been awarded a contract but for the challenged ordinance.” Rather, the injury is \"the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Id. at 666, 113 S.Ct. 2297. \"The injury in cases of this kind is that a 'discriminatory classification prevent[s] the plaintiff from competing on an equal footing.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (quoting Northeastern Florida, 508 U.S. at 667, 113 S.Ct. 2297) (alteration in original); see also Bras v. California Public Utility Comm’n, 59 F.3d 869, 873 (9th Cir.1995) (following this analysis). The injury suffered by Oloyede and Habib is" }, { "docid": "3697220", "title": "", "text": "benefit. Id.; see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n. 14, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (principal opinion by Powell, J.) (plaintiff challenging a medical school affirmative action program need not prove that he would have been admitted absent the challenged program because his injury was the inability to compete for all seats in the entering class). The same rule applies where, as here, a prospective subcontractor chai lenges a government program that gives general contractors a financial incentive to hire minority-owned subcontractors. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210-12, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). We applied this rule in Bras v. California Public Utilities Commission, 59 F.3d 869, 873-74 (9th Cir.1995), where we held that a plaintiff architect had standing to challenge a state law that established aspirational affirmative action goals, rather than strict set-aside quotas, for using minority- and women-owned businesses in public utility contracts. Similarly, in Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 704, 707 (9th Cir.1997), reh’g denied, 138 F.3d 1270 (9th Cir.1998), we held that a general contractor had standing to challenge a state law requiring bidders on public contracts to show a “good faith effort” to hire a certain percentage of minority- and women-owned subcontractors. Id. However, Article III standing to bring an equal protection challenge is not without limits. The rule that a plaintiff must assert a particularized injury, rather than a generalized grievance, “applies with as much force in the equal protection context as in any other.” United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). Even if the government has discriminated on the basis of race, only those who are “personally denied” equal treatment have a cognizable injury under Article III. Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (internal quotation omitted); see also Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 489 n. 26, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (rejecting the notion that every" }, { "docid": "8060147", "title": "", "text": "and for each form of relief sought. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 210-11, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). In reaching its determination with respect to standing, the district court did not differentiate between Donahue’s claim for retrospective relief in the form of damages and his claim for prospective relief in the form of an injunction and declaratory judgment. Because we perceive crucial analytical differences between the two claims, we scrutinize them independently of one another. Our review of the district court’s ruling on standing is plenary. Nyer v. Winterthur Int'l, 290 F.3d 456, 459 (1st Cir.2002). 1. Damages claim Donahue argues that he is entitled to pursue his damages claim because he was denied appointment to the BPD under a facially race-conscious hiring policy. In contrast, appellees argue that Donahue lacks standing to assert his claim for damages because he cannot demonstrate that he would have been hired under race-neutral criteria. We agree with appellees that Donahue cannot establish standing to claim damages. The Supreme Court addressed a similar issue in Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam). In Lesage, a white plaintiff brought an equal protection action under 42 U.S.C. § 1983 for monetary damages after unsuccessfully applying to a doctoral program at the University of Texas. Id. at 19, 120 S.Ct. 467. Although the university did not dispute that race was a factor considered at some stages of the admissions process, id., the district court granted summary judgment to the university, reasoning that the plaintiff would have been denied admission even if race had not been a factor in the admissions process, id. at 20, 120 S.Ct. 467. Reversing the district court, the Fifth Circuit held that the plaintiffs chances under a color-blind admissions scheme were irrelevant if he could prove that his application was treated differently because of race. Id. The Supreme Court then reversed the Fifth Circuit, holding that the government was entitled to summary judgment on the damages claims. The Court stated, “[sjimply put, where a plaintiff challenges a discrete governmental" }, { "docid": "3697225", "title": "", "text": "terms of price or other criteria. See, e.g., Western States, 407 F.3d at 987 (evidence that plaintiff submitted a lower bid than other firms); Monterey Mechanical, 125 F.3d at 704 (same); Bras, 59 F.3d at 871 (evidence that plaintiff was “very competitive” with other firms). Nor has he presented evidence explaining why the six prospective prime contractors rejected him as a subcontractor. See, e.g., Adarand, 515 U.S. at 205, 115 S.Ct. 2097 (describing an affidavit from the prime contractor); Western States, 407 F.3d at 987 (“The prime contractor explicitly identified the contract’s minority utilization requirement as the reason that it rejected Western States’ bid.”). There is nothing in the record indicating that the DBE program posed a barrier that impeded Braunstein’s ability to compete for work as a subcontractor. See Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 657 (9th Cir.2002) (“[The] existence of a racial or gender barrier is [not] enough [to establish standing], without a plaintiffs showing that she has been ... subjected to such a barrier.”). To the contrary, the district court found that Braunstein “did not get any of the work because those who were in a position to provide it did not want to do business with Braunstein.” In Texas v. Lesage, 528 U.S. 18, 21, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam), the Supreme Court held that, “where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government’s conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability.” The Court held that the plaintiff graduate school applicant lacked a cognizable injury to challenge the school’s affirmative action program under § 1983 because the school presented undisputed evidence that it would have rejected his application regardless of the challenged program. Id. at 19-22, 120 S.Ct. 467. As in Lesage, Braunstein seeks only damages, and the evidence establishes that he would not have received utility location work under the 2005 contract regardless of the DBE program. Indeed, Braunstein explicitly acknowledged in one of his" }, { "docid": "20635144", "title": "", "text": "in fact” is the inability to compete on an equal footing in the bidding process, not the loss of a contract. To establish standing, therefore, a party challenging a set-aside program like Jacksonville’s need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis. Id. at 666, 113 S.Ct. 2297 (internal citations omitted). In Adamnd Constructors, Inc. v. Pena, the Court reaffirmed that contractors have standing to press facial challenges to race-conscious statutory regimes, at least so long as those contractors “ha[ve] made an adequate showing that sometime in the relatively near future [they] will bid on another Government contract.” Adarand, 515 U.S. at 211, 115 S.Ct. 2097. We see no basis for distinguishing between contractors and job applicants. Because job applicants, like contractors, must compete to obtain a benefit, they too have standing to challenge statutory set-aside programs. Cf. Texas v. Lesage, 528 U.S. 18, 21, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (suggesting that applicants to graduate schools can prospectively challenge a public university’s race-conscious policies). No such statutory program is at issue here, however, since Worth challenges only internal agency policies. And neither Northeastern Florida nor Adarand resolves whether plaintiffs can bring facial challenges to agency employment policies not embodied in a statute. We nonetheless see no basis for thinking the source of an agency’s race-conscious policy — whether a statute, a regulation, or agency guidelines — controls the standing question. Emphasizing that imminence is “a somewhat elastic concept,” 515 U.S. at 211, 115 S.Ct. 2097 (quoting Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130), Adarand rests on the common-sense notion that when a contractor depends for its livelihood on competing for government contracts, and when the government has committed itself to doling out those contracts on a race-conscious basis, it stands to reason that the contractor will soon be competing on an uneven playing field. See id. at 212, 115 S.Ct. 2097. Under Adarand, then, the relevant consideration is whether the agency is sufficiently committed to a particular" }, { "docid": "22315278", "title": "", "text": "action, finding that he, like Davis, lacked standing to pursue his discrimination claims. 59 F.Supp.2d at 1318-1323. In a separate order entered on that date, the court found that Tracy had not established the prerequisites needed to obtain pro spective injunctive relief, and also that Tracy was only entitled to recover nominal damages. The court denied as well Plaintiffs’ motion for class certification. All of those rulings were appealed to this Court. While the appeal was pending, the Supreme Court decided a relevant case, Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999). In pertinent part, the Supreme Court explained that: [Wjhere a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983. Of course, a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is “the inability to compete on an equal footing.” Northeastern Fla. Chapter, Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). See also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government’s conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability. 528 U.S. at 21, 120 S.Ct. at 468-69. Sua sponte, this Court on April 14, 2000, issued a decision vacating the district court’s orders. As we explained: Appellants brought related challenges to the University of Georgia’s use of race in its admissions process and to the maintenance of historically black colleges within the state’s university system. The district court granted summary judgment to appellees on all but one claim on standing and mootness grounds. After the appeal was" }, { "docid": "3697226", "title": "", "text": "court found that Braunstein “did not get any of the work because those who were in a position to provide it did not want to do business with Braunstein.” In Texas v. Lesage, 528 U.S. 18, 21, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam), the Supreme Court held that, “where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government’s conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability.” The Court held that the plaintiff graduate school applicant lacked a cognizable injury to challenge the school’s affirmative action program under § 1983 because the school presented undisputed evidence that it would have rejected his application regardless of the challenged program. Id. at 19-22, 120 S.Ct. 467. As in Lesage, Braunstein seeks only damages, and the evidence establishes that he would not have received utility location work under the 2005 contract regardless of the DBE program. Indeed, Braunstein explicitly acknowledged in one of his earlier state court suits that DMJM, the winning bidder on the 2005 contract, would not hire him as a subcontractor for reasons unrelated to the DBE program. Because Les-age precludes a finding of liability in such a circumstance, Braunstein lacks Article III standing. See, e.g., Donahue v. City of Bos., 304 F.3d 110, 117-19 (1st Cir.2002); Aiken v. Hackett, 281 F.3d 516, 519-20 (6th Cir.2002). At the summary judgment stage, Braunstein was required to set forth “specific facts” demonstrating that the DBE program impeded his ability to compete for the subcontracting work on an equal basis. Lujan, 504 U.S. at 561, 112 S.Ct. 2130; see also Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (“The litigant must clearly and specifically set forth facts sufficient to satisfy these Art. Ill standing requirements.”). Braunstein’s opening brief in this court failed to provide even one citation to record evidence supporting his alleged Article III injury. At oral argument, Braunstein was unable to explain how the DBE program adversely affected him personally. We" }, { "docid": "8060156", "title": "", "text": "to involve a federal controversy.’ ”) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974)); accord Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, -, 122 S.Ct. 1753, 1759, 152 L.Ed.2d 871 (2002); Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 122 S.Ct. 934, 938, 151 L.Ed.2d 896 (2002). We therefore affirm the ruling of the district court with respect to Donahue’s claim for damages. 2. Claim for prospective relief As we have already noted, standing to assert an equal protection claim for prospective relief is viewed through a different prism. The crucial difference between claims for damages and claims for prospective relief was summarized by the Lesage Court in this manner: [A] plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is “the inability to compete on an equal footing.” 528 U.S. at 21, 120 S.Ct. 467 (quoting Northeastern Fla. Chapter of Assoc. Gen. Contractors v. Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993)); accord Adarand, 515 U.S. at 211, 115 S.Ct. 2097; Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality opinion). In other words, a plaintiff may establish standing for prospective relief if he has or is likely to be “expos[ed] to unequal treatment.” Wooden, 247 F.3d at 1279. However, because the relief sought is forward-looking, the plaintiff must also be able to show that he is “able and ready” to apply for the benefit and that the challenged “discriminatory policy prevents [him] from doing so.” Jacksonville, 508 U.S. at 666, 113 S.Ct. 2297; see also O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunc-tive relief ... if unaccompanied by any continuing, present adverse effects.”). Notwithstanding the appellees’ various arguments to the contrary," }, { "docid": "22149874", "title": "", "text": "has been no showing that the pool of potential plaintiffs able to challenge UGA’s freshman admissions policy on these grounds is drying up. We also are confident that, regardless of any prospective relief a court might order, UGA would not ignore the import of a controlling federal court decision holding that its freshman admissions policy is unconstitutional. In any event, as discussed above, Tracy is not in a position to advance these concerns as a reason to grant him standing to seek prospective injunctive relief because he was not affected by the version of UGA’s freshman admissions policy now in place. Finally, Plaintiffs maintain that [Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam) ], somehow entitles Tracy to prospective injunctive relief. But there is no indication in Lesage that the Court intended to alter the well-settled prerequisites to granting such relief. Plaintiffs’ argument appears to be based on the Court’s statement that “[o]f course, a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered.” 528 U.S. at 21, 120 S.Ct. at 468. But Lesage plainly does not hold that a plaintiff may obtain prospective injunc-tive relief merely by alleging “an ongoing or imminent constitutional violation,” id., arising out of a practice that has not injured him to date and is highly unlikely to injure him in the future. Nor can Lesage be read to create an exception to Lyons where the discriminatory admissions policy is still in place. If the Supreme Court intended so significant and potentially far-reaching a change in the law of standing, surely it would have said so directly, or at least cited Lyons. To reiterate, standing, qua standing, was not even an issue in Les-age, and no question of prospective relief arose there because it appeared that the plaintiff had abandoned his claim that the defendant university was still administering a discriminatory admissions policy. 528 U.S. at 22, 120 S.Ct. at 469. Tracy, therefore, lacks standing to seek prospective injunctive" }, { "docid": "22315279", "title": "", "text": "The relevant injury in such cases is “the inability to compete on an equal footing.” Northeastern Fla. Chapter, Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). See also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government’s conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability. 528 U.S. at 21, 120 S.Ct. at 468-69. Sua sponte, this Court on April 14, 2000, issued a decision vacating the district court’s orders. As we explained: Appellants brought related challenges to the University of Georgia’s use of race in its admissions process and to the maintenance of historically black colleges within the state’s university system. The district court granted summary judgment to appellees on all but one claim on standing and mootness grounds. After the appeal was filed in this case, the Supreme Court in the case of Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999), clarified the standing requirements for plaintiffs challenging race-based admissions policies. It is therefore ORDERED that the judgment of the district court is VACATED and the case is REMANDED to that court for further consideration in light of Lesage. Tracy v. Board of Regents of the Univ. Sys., 208 F.3d 1313, 1313-14 (11th Cir.2000) (per curiam). On remand, the district court expressly considered Lesage, but eventually reinstated all of its prior rulings. The district court subsequently denied the Tracy Plaintiffs’ motion for reconsideration, largely repeating the analysis set out at length in its several prior opinions. The relevant portions of the district court’s rulings may be summarized as follows. With respect to Tracy’s request for prospective injunctive relief, the district court initially concluded that this request was moot because Tracy transferred to UGA in 1997 and therefore had no reason to pursue an order compelling his admission to UGA. Subsequently, after this" }, { "docid": "22315280", "title": "", "text": "filed in this case, the Supreme Court in the case of Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999), clarified the standing requirements for plaintiffs challenging race-based admissions policies. It is therefore ORDERED that the judgment of the district court is VACATED and the case is REMANDED to that court for further consideration in light of Lesage. Tracy v. Board of Regents of the Univ. Sys., 208 F.3d 1313, 1313-14 (11th Cir.2000) (per curiam). On remand, the district court expressly considered Lesage, but eventually reinstated all of its prior rulings. The district court subsequently denied the Tracy Plaintiffs’ motion for reconsideration, largely repeating the analysis set out at length in its several prior opinions. The relevant portions of the district court’s rulings may be summarized as follows. With respect to Tracy’s request for prospective injunctive relief, the district court initially concluded that this request was moot because Tracy transferred to UGA in 1997 and therefore had no reason to pursue an order compelling his admission to UGA. Subsequently, after this Court’s remand, the district court explained that its earlier mootness analysis was incorrect. Nevertheless, the court re instated its prior decision on the ground that Tracy lacked standing to obtain any form of prospective relief regarding UGA’s freshman admissions policy, given that Tracy would never again be subject to that policy and accordingly could not establish the prospect of imminent harm necessary for him to have standing to seek a prospective injunction. With respect to Davis, the district court found that she did not suffer any injury-in-fact. It reasoned that because she was denied admission outright at the AI stage, without ever proceeding to the TSI stage, she could not establish that race was a factor in the denial of her application, and specifically could not establish that UGA’s discriminatory practices made her unable to compete on an equal footing with similarly-situated non-white applicants. With respect to Green, the court found that he lacked standing to sue on an “equal footing” theory because even though he went through the race-conscious TSI phase of UGA’s admissions" }, { "docid": "22315303", "title": "", "text": "prospective injunctive relief. In the course of that discussion, the Court referred to its earlier standing-related decisions defining the relevant injury in cases challenging an affirmative action policy: Of course, a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is “the inability to compete on an equal footing.” Northeastern Fla. Chapter, Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). See also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government’s conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability. Lesage, 528 U.S. at 21, 120 S.Ct. at 468-69. The court went on to remand Lesage’s claim for prospective injunctive relief, because it could not determine whether that claim had been abandoned. As Defendants observe, Lesage does not specifically address standing (indeed, the opinion does not refer to standing at all). Nevertheless, we agree with our decision vacating the district court’s original judgment, in which we described Lesage as “clarifying] the standing requirements for plaintiffs challenging race-based admissions policies.” 208 F.3d at 1313-14. Whether or not the opinion expressly discusses standing, it plainly bears on that inquiry because it further defines the kind of injury that would support relief in a case challenging the process of awarding benefits under a government affirmative action plan. “Injury-in-fact” is the touchstone of standing, see, e.g., Lujan, 504 U.S. at 560, 112 S.Ct. at 2136, and it is to Supreme Court decisions such as Lesage that we must look in defining the relevant injury in these types of cases. The difficulty, of course, is determining the scope of the Court’s statement — first made in Jacksonville, reiterated in Ada-rand, and repeated most recently in Les-age — that “[t]he" }, { "docid": "22315302", "title": "", "text": "467. The crux of the Court’s concern was the Fifth Circuit’s failure to take sufficient account of the merits defense created by Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and its progeny. Under Mt. Healthy, explained the Court, “even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration.... Simply put, where a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983.” Lesage, 528 U.S. at 20-21, 120 S.Ct. at 468 (citing Mt. Healthy). The Court found that, on remand, the university should be permitted to seek summary judgment on this basis. The Court went on, however, to distinguish between the requisite injury for seeking damages and that necessary to seek prospective injunctive relief. In the course of that discussion, the Court referred to its earlier standing-related decisions defining the relevant injury in cases challenging an affirmative action policy: Of course, a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is “the inability to compete on an equal footing.” Northeastern Fla. Chapter, Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). See also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government’s conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability. Lesage, 528 U.S. at 21, 120 S.Ct. at 468-69. The court went on to remand Lesage’s claim for prospective" }, { "docid": "13703337", "title": "", "text": "filed his Complaint. See NHRLF Application (signed and dated October 19, 2000) (attached as Exhibit D to OHA’s Separate and Concise Statement of Facts). Plaintiffs must have standing at the time their Complaint is filed. See Deck v. American Hawaii Cruises, Inc., 121 F.Supp.2d 1292, n. 3 (D.Haw.2000) (collecting cases). Therefore, the appropriate inquiry for this court is not whether Plaintiff has standing based on his incomplete loan application, but whether he has standing despite not having submitted an application, incomplete or otherwise. When a plaintiff brings an equal protection challenge to a race-conscious program and seeks forward-looking relief, the “injury” is the inability to compete on equal footing, not the denial of the benefit. See Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); accord Texas v. Lesage, 528 U.S. 18, 21, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999). For example, in Northeastern Florida, the plaintiff was an association of contractors challenging the city’s program of setting aside 10% of all government contracts for businesses that were at least 51% women- or minority-owned. The Court held that, to establish standing, the plaintiff need only show that it is “able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.” Northeastern Florida, 508 U.S. at 666, 113 S.Ct. 2297. In that case, the plaintiffs alleged that its members “regularly bid on contracts in Jacksonville and would bid on those that the city’s ordinance makes unavailable to them.” Id. at 668, 113 S.Ct. 2297. The Court found this sufficient for standing purposes, and allowed the case to go forward on the merits. See id. Applying Northeastern Florida, the Ninth Circuit held in Bras v. California Public Utilities Commission that an architect (who had previously submitted numerous public contracting bids and had a more than 20-year history working for the public utility company) had standing to challenge a discriminatory contracting policy where he stated in his declaration that: “I earnestly desire to reinstate my long term" }, { "docid": "3697219", "title": "", "text": "standing to bring equal protection challenges. In Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656, 658-59, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993), plaintiff construction firms challenged an affirmative action program that set aside 10 percent of city contracts for Minority Business Enterprises. The Court described their injury-in-fact as “the inability to compete on an equal footing in the bidding process, not the loss of a contract.” Id. at 666, 113 S.Ct. 2297. The Court explained: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. Id.; see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n. 14, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (principal opinion by Powell, J.) (plaintiff challenging a medical school affirmative action program need not prove that he would have been admitted absent the challenged program because his injury was the inability to compete for all seats in the entering class). The same rule applies where, as here, a prospective subcontractor chai lenges a government program that gives general contractors a financial incentive to hire minority-owned subcontractors. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210-12, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). We applied this rule in Bras v. California Public Utilities Commission, 59 F.3d 869, 873-74 (9th Cir.1995), where we held that a plaintiff architect had standing to challenge a state law that established aspirational affirmative action goals, rather than strict set-aside quotas, for using minority- and women-owned businesses in public utility contracts. Similarly, in Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 704, 707 (9th Cir.1997), reh’g denied," }, { "docid": "23564699", "title": "", "text": "the same as Native American inmates requesting the same religious articles. The district court’s injunction recognizes this distinction and narrowly tailors the injunction to the race-based conduct. Defendants are not required to allow Morrison to obtain the religious articles he has requested or which he may request in the future. Rather, the district court only enjoined the defendants from using race as the sole factor in their determination of whether Morrison would be granted an exemption from the personal property restrictions. Also, Morrison need not prove that he would ultimately receive the items in order to obtain an injunction from further application of the race-based aspect of the policy to him. See Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 468, 145 L.Ed.2d 347 (1999). “[A] plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered.” Id. Rather, the relevant inquiry is whether there has been an “ ‘inability to compete on an equal footing.’ ” Id. (quoting Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993)); see also Price v. City of Charlotte, 93 F.3d 1241, 1247-48 (4th Cir.1996). Thus, while Morrison can no longer pursue the claim that he is entitled to possess the requested religious items under the free exercise clause of the First Amendment, his equal protection claim, seeking to have his request for religious items considered under the same criteria applied to the requests of Native American inmates, survives. IV. We now turn to the question of whether the GCC policy, which conditions consideration of Morrison’s receipt of Native American spiritual articles upon proof that he is of Native American race, violates Morrison’s right to equal protection of the laws under the United States Constitution. We conclude that it does. A. Our first inquiry is whether Morrison is being treated differently from others similarly situated to him; ie., whether he is being intentionally or purposefully discriminated against on the basis of his" } ]

[ { "docid": "13846470", "title": "", "text": "Fifth Circuit noted the disclaimer by the defendants, but, for some reason not appearing in the report of the decision, assumed that the defendants did not “seriously dispute the facts.” The Court of Appeals proceeded to summarize the allegations of the complaint and concluded that if the case had actually been tried, the defendants would probably have lost. The Court inferred that this was ample justification for approval of the consent decree. I have made no such review of the allegations of these complaints, and, as noted above, I specifically decline to express any opinion regarding the merits of the claim. It is well known that in litigation between private parties, defendants who enter compromise settlements carefully refrain from admitting liability and courts routinely approve such settlements. I read United States v. City of Alexandria and United States v. City of Miami, Florida as holding that a district court is mandated to approve a consent decree in civil rights cases even where the defendant public body does not admit wrongdoing. Public bodies may want to, and ought to be permitted to, protect themselves from claims for damages or attorney’s fees or other claims which might follow admission of constitutional or other violations in consent decrees. After all, if there has been no trial upon the merits, why should there be such an admission? If public bodies must admit guilt in order to settle these cases, then settlements are going to be few and far between. Thus, I conclude that this proposal does not require an admission by the school board that the present system is unconstitutional or otherwise invalid. In that connection, although not expressing any view upon the merits, but considering the jurisprudence of the last fifteen years, it is certainly prudent for the school board to view these suits as serious claims. Moreover, they are expensive; each has been pending for a number of years; each has been separately litigated in the district court, appealed to the Court of Appeals and remanded to the district court. Compromise of extended and expensive litigation was reasonable for all parties in" } ]

[ { "docid": "19336467", "title": "", "text": "it has violated the law has nothing to do with whether a federal court may impose a remedy without first determining that the State has violated the law. The Court evidently believes that an adjudication of unconstitutionality of District 21 was unnecessary here because the State entered into a consent agreement accepting judicial imposition of Plan 386. For this proposition it relies upon Firefighters v. Cleveland, 478 U. S. 501 (1986), which said that “it is the parties’ agreement that serves as the source of the [District Court’s] authority to enter... judgment....” Id., at 522. However, that passage from Firefighters is of no help to the Court — even putting aside the fact that the “agreement” there at issue, unlike the one here, was an agreement to remedy unlawful conduct (a “pattern of racial discrimination”) that had been adjudged, id., at 506, 511—512. Firefighters was a Title VII action by minority firefighters, alleging that the city discriminated against them in promotions. A union representing the majority of the city’s firefighters intervened as a party-plaintiff and objected to the settlement, contending, among other things, that its consent was required in order for the District Court to enter a consent decree. We disagreed. The minority firefighters and the city, we said, could have reached an out-of-court agreement to resolve their dispute. See id., at 522-523, and n. 13. “[T]he choice of an enforcement scheme — whether to rely on contractual remedies or to have an agreement entered as a consent decree — is itself made voluntarily by the parties.” Id., at 523. In today’s case, by contrast, neither the appellant nor the other original plaintiffs (now appellees) could have concluded a binding out-of-court “redistricting agreement” with representatives of the Florida Legislature, or with the state attorney general — and the Court does not contend otherwise. The Florida Constitution, Art. III, § 16, requires the legislature to draw districts “by joint resolution,” and provides no authority for the attorney general to do so. Any “redis tricting agreement” entered into by these officials with individual voters would obviously be null and void. And a" }, { "docid": "4470721", "title": "", "text": "International Fiberglass Co., 469 F.2d 1063 (1st Cir. 1972) or criminal contempt, U. S. v. Schafer, 600 F.2d 1251 (9th Cir. 1979). Thus, although an order embodying a consent decree has some of the characteristics of a contract, it is more than simply an agreement between the parties. [A consent] judgment is not an inter partes contract; the court is not properly a recorder of contracts, but is an organ of government constituted to make judicial decisions and when it has rendered a consent judgment it has made an adjudication. IB Moore’s Federal Practice ¶ 0.409[5], at 1030 (2d ed. 1982), quoted in United States v. City of Miami, Florida, 664 F.2d 435, 441 (5th Cir. 1981) (opinion of Rubin, J.). See AMF Inc. v. International Fiberglass Co., supra, at 1065. The force and validity of a consent decree as a binding adjudication derives from the careful consideration given by the court to the constitutional and statutory policies underlying the settlement, and to the interests of all parties and the general public. In assessing the propriety of giving judicial imprimatur to the consent decree, the court must also consider the nature of the litigation and the purposes to be served by the decree. If the suit seeks to enforce a statute, the decree must be consistent with the public objectives sought to be attained by Congress. . . . Voluntary compliance will frequently contribute significantly toward ultimate achievement of statutory goals.... Defendants “minimize costly litigation and adverse publicity and avoid the collateral effects of adjudicated guilt.” United States v. City of Jackson, 519 F.2d [1147] at 1152 n.9. Therefore, willing compliance will be more readily generated by consent decrees than would mandates imposed at the end of bitter and protracted litigation. United States v. City of Miami, Florida, supra, at 441-42. In public law litigation, the court must also satisfy itself that there has been no collusion among the parties and that all branches of government have had the opportunity to participate in the fashioning of the decree, and have evidenced support for them. In those instances, consent decrees carry" }, { "docid": "23189007", "title": "", "text": "assuming that the settlement proposed in Chisom was entirely consistent with state law — a matter upon which we expressed no opinion — there is a crucial distinction be tween this case and Chisom: in Chisom, the district court had found no section 2 liability; in this case, by contrast, the. district court found that the Texas’ method of electing district court judges in county-wide elections violated section 2 in each of the nine target counties. I think the district court’s section 2 liability findings provide a sufficient basis for remanding the case for a hearing on the proposed settlement. Of course, I agree with the majority that the district court would not be able to “merely sign on the line provided by the parties.” See United States v. City of Miami Florida, 664 F.2d 435 (Former 5th Cir.1981) (en banc). Given the detailed section 2 findings already made by the district court, however, I do not think that the settlement’s apparent inconsistency with state law is a reason to deny the motion to remand. Our decision in Overton v. City of Austin, 748 F.2d 941 (5th Cir.1984), rather than arguing against a remand, suggests that a remand may be particularly appropriate in this case. There, we refused to mandamus a district court to enter a proposed consent decree based on a settlement between minority plaintiffs and the City of Austin. We noted that, at the time the settlement was presented for approval, no evidence of vote dilution had been presented to the district court. In holding that the district court did not abuse its wide discretion in refusing to enter the consent decree, we concluded that the parties were effectively trying to accomplish a result — namely, the amending of Austin’s City Charter — which they did not have the power to do without a vote of the people. We stated: Thus, more is necessarily involved than merely ascertaining whether the parties have consented to an ultimate result which is not of itself illegal, unreasonable or unfair. Absent a properly grounded judicial determination that the present charter provisions are" }, { "docid": "4470720", "title": "", "text": "needs, psychological needs, equipment needs, guardianship needs, and habilitation needs as a whole, including all education, recreation, speech therapy, physical therapy, support services, and other services required by this Decree to meet the needs of the individual. The staff at Wrentham must be “sufficient ... to meet each individual’s residential and program needs as specified in the individual service plan.” Thus under the terms of the decrees any diminution in personnel may not reduce the level of services below that which is required by Title XIX and the decrees themselves. Ill The Law Consent decrees which are negotiated and agreed upon by litigants, and formally approved by the court, are binding orders that “have the same force and effect as any other judgment until set aside in the manner provided by law.” United States v. Kellum, 523 F.2d 1284, 1287 (5th Cir. 1975). See also Interdynamics v. Firma Wolf, 653 F.2d 93, 96-97 (3rd Cir. 1981). An order incorporating a consent decree may be enforced by a motion either for civil contempt, AMF Inc. v. International Fiberglass Co., 469 F.2d 1063 (1st Cir. 1972) or criminal contempt, U. S. v. Schafer, 600 F.2d 1251 (9th Cir. 1979). Thus, although an order embodying a consent decree has some of the characteristics of a contract, it is more than simply an agreement between the parties. [A consent] judgment is not an inter partes contract; the court is not properly a recorder of contracts, but is an organ of government constituted to make judicial decisions and when it has rendered a consent judgment it has made an adjudication. IB Moore’s Federal Practice ¶ 0.409[5], at 1030 (2d ed. 1982), quoted in United States v. City of Miami, Florida, 664 F.2d 435, 441 (5th Cir. 1981) (opinion of Rubin, J.). See AMF Inc. v. International Fiberglass Co., supra, at 1065. The force and validity of a consent decree as a binding adjudication derives from the careful consideration given by the court to the constitutional and statutory policies underlying the settlement, and to the interests of all parties and the general public. In assessing the" }, { "docid": "1158391", "title": "", "text": "partial summary judgment and the imposition of sanctions. II. Ho does not dispute either that he entered into the original settlement or that the settlement (on its face, at least) covers his worker’s compensation claim. Ho argues, instead, that the settlement does not legally encompass his worker’s compensation claims because (1) the district court did not have jurisdiction to entertain a worker’s compensation claim, and therefore did not have the jurisdiction to enter a judgment that would affect such a claim, and (2) Louisiana law allows courts to accept settlements in worker’s compensation cases only when the courts follow specified procedures which the district court concededly did not follow here. Ho’s attack on the judicial consent decree, however, is fatally flawed by his misunderstanding of the nature of such decrees. Ho treats them as though they were only final judgments, subject to the same constraints of jurisdiction and the same rules of collateral attack. In fact, judicial consent decrees are not only final judgments on the merits, but also settlements to which adversarial parties have consented. See United States v. City of Miami, 664 F.2d 435, 440 (5th Cir.1981) (en banc) (Rubin, J., concurring); High v. Braniff Airways, 592 F.2d 1330 (5th Cir.1979). Thus, when we test the validity of consent decrees that affect only the rights of the parties before the court, we are mindful of the principles not only regarding the validity of judgments but also regarding the validity of contracts. See City of Miami, 664 F.2d at 440 (Rubin, J., concurring); United States v. ITT Continental Bakery Co., 420 U.S. 223, 236-37 n. 10, 95 S.Ct. 926, 934 n. 10, 43 L.Ed.2d 148 (1975). The district court, which Ho claims has no jurisdiction over the worker’s compensation portion of the settlement, obtained jurisdiction of this case when Ho filed his Title VII action. The district court then properly encouraged both sides to settle the case and actively assisted the parties in reaching an acceptable agreement. The parties themselves; however, reached a settlement on their own that was mutually acceptable. As with most settlements between two private parties," }, { "docid": "9955168", "title": "", "text": "with Judge Posner’s nod to future Illinois attorneys general and legislators. Unlike Judge Posner, I am unwilling to await some future litigant. I would instead preserve the right of appeal for class members who, for one reason or another, believe that the process that led to the adoption of the settlement or decree— which will preclude them from asserting their legal rights in the future, see Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 367, 41 S.Ct. 338, 342, 65 L.Ed. 673 (1921) — was tainted. In some cases they may be right, and an appellate court will be able to prevent an unfair or unlawful settlement or consent decree from taking effect. In all cases we will satisfy the objecting class members that they have received justice rather than leaving them to walk down the courthouse steps feeling twice spurned by the judicial system, first by a settlement reached and approved through inadequate procedures, and second by a rule of standing that denies them the right to challenge that settlement. So long as challenges to the procedure leading to a settlement are brought by class members, appeals courts should remain open to hear them. Because I conclude that two of the four individuals objecting to the fairness of the consent decree arrived at in this case have standing to do so, I turn to the substantive issue presented in this appeal: whether the decree in this case is “fair, reasonable and equitable, and does not violate the law or public policy.” Sierra Club v. Elec. Controls Design, 909 F.2d 1350, 1355 (9th Cir.1990). In my view, the district court’s examination of the troublesome issues raised by the decree renders us incapable, on this record at least, of answering this question. The district court in this case yielded to the view that consent decrees are essentially contracts between the litigants, with the district court’s role limited to “sign[ing] on the line provided by the parties.” United States v. Miami, 664 F.2d 435, 441 (5th Cir.1981) (en banc) (opinion of Rubin, J.). It chose not to examine, in any but" }, { "docid": "23188919", "title": "", "text": "a violation of Section 2, district courts have equitable power to depart from state law if necessary. See, e.g., White v. Weiser, 412 U.S. 783, 797, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335 (1983) (Constitution and Voting Rights Act limit judicial deference to state apportionment policy). If the court ultimately concludes that there is a reasonable factual and legal basis for finding such a violation, see City of Miami, 664 F.2d at 441, the exercise of such powers by way of a consent decree may be appropriate. . See Tex. Const. art. 5, § 7a(h) (\"Any judicial reapportionment order adopted by the board must be approved by a record vote of the majority of the membership of both the senate and house of representatives before such order can become effective and binding.”). . Chief Justice Phillips’s limited authority in this area distinguishes the case at bar from Baker v. Wade, 769 F.2d 289 (5th Cir.1985) (en banc), heavily relied upon by the majority. Unlike the district attorney in that case, who enjoyed specific authority under state law to represent the state and bring prosecutions under the statute there at issue, Chief Justice Phillips enjoys neither independent authority over judicial apportionment nor express authority to represent the state. . This proposition applies equally to Judges Entz and Wood. Further, because the proposed consent decree will not affect their constituencies, Judges Entz and Wood do not gain standing to challenge the consent decree because of their status as office holders. City of Cleveland, 478 U.S. at 528-29, 106 S.Ct. at 3079; City of Miami, 664 F.2d at 447 (\"the parties to litigation are not to be deprived of the opportunity to compose their differences by objections that find no basis in prejudice to the objector”). Finally, the majority opines that the status of Judges Entz and Wood as voters in Harris County somehow clothes them with authority to block a settlement favored by competent state authorities. While the district courts certainly should permit input from such intervenors when considering entry of a consent decree, to accord them what amounts to a veto," }, { "docid": "1748361", "title": "", "text": "(3) whether its effect on third parties is unreasonable or unlawful. A. Factual and Legal Basis As recited in my prior opinion, the plaintiffs demonstrated at the first fairness hearing that had this case gone to trial they could have established a prima facie case of intentional discrimination against black officers. Accordingly, there is a legal and factual basis to support a judicial remedy embodied in a consent decree. Cf. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 1852-57, 90 L.Ed.2d 260 (O’Connor, J. concurring). Of course, that there exists a factual basis for a judicial remedy is not to say that the particular remedy selected is narrowly enough tailored to the asserted remedial goal. Id. 106 S.Ct. at 1857; Fullilove v. Klutznick, 448 U.S. 448, 484, 100 S.Ct. 2758, 2777, 65 L.Ed.2d 902 (1980). That issue is reserved for discussion hereafter in part C. B. Fair, Adequate and Reasonable? In assessing whether the proposed consent decree is fair, adequate and reasonable, I must consider six factors: (1) whether the settlement was a product of fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the factual and legal obstacles to prevailing on the merits; (5) the possible range of recovery and the certainty of damages; and (6) the respective opinions of the participants, including class counsel, class representatives, and the absent class members. Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. Unit A 1982). I thoroughly analyzed the first proposed consent decree in light of these factors in my prior opinion. There is no reason to repeat that analysis here. The only significant change in the decree is the deletion of the one-for-one quota which I found was impermissible. In all other respects the decree provides relief almost identical to that provided by the first proposed consent decree and for the reasons previously expressed, I find that the decree is a fair, adequate and reasonable settlement to this litigation. The objections of the class members to the revised" }, { "docid": "1775830", "title": "", "text": "the entry of a consent decree with injunctive provisions, the court is obligated to ensure that judicial power is not misused. The court’s role is analogous, though not identical, to its function in scrutinizing class action settlements to ascertain that they are fair, adequate and reasonable. Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. 1982); Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977); see Fed.R.Civ.P. 23(e). As Judge Rubin recently explained, a proposed consent decree requires still closer attention: Because the consent decree does not merely validate a compromise but, by virtue of its injunctive provisions, reaches into the future and has continuing effect, its terms require more careful scrutiny. Even when it affects only the parties, the court should, therefore, examine it carefully to ascertain not only that it is a fair settlement but also that it does not put the court’s sanction on and power behind a decree that violates Constitution, statute, or jurisprudence. This requires a determination that the proposal represents a reasonable factual and legal determination based on the facts of record, whether established by evidence, affidavit, or stipulation. If the decree also affects third parties, the court must be satisfied that the effect on them is neither unreasonable nor proscribed. United States v. City of Miami, 664 F.2d 435, 441 (5th Cir. 1981) (en banc) (Rubin, J.) (footnote omitted). To win approval in litigation seeking to enforce a federal statute, a decree must be “consistent with the public objectives sought to be attained by Congress.” Id. In Title VII suits, a decree also should be viewed in light of Congress’ determination that voluntary compliance is a preferred means of eliminating employment discrimination. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). My inquiry thus focuses on three criteria for approval: (1) whether the proposed consent decree is a reasonable factual and legal determination based on the record; (2) whether it constitutes a fair and reasonable settlement with respect to the plaintiff class; and (3) whether its effect on third parties is neither unreasonable nor" }, { "docid": "23188917", "title": "", "text": "at trial). . Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-29, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405 (1986); United States v. City of Miami, 664 F.2d 435, 439 (5th Cir.1981) (citing United States v. Armour & Co., 402 U.S. 673, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971)) (en banc) (plurality opinion). . City of Miami, 664 F.2d at 440. . See Chisom v. Edwards, 970 F.2d 1408 (5th Cir.1992) (granting joint motion to remand to effectuate settlement in Louisiana voting rights case). . The State is the real party in interest in an action against one of its officials in her official capacity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989); Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). The plaintiffs here named as defendants the Governor of Texas, the Attorney General, the Secretary of State, and the Chief Justice of the Supreme Court as chair of the Judicial Districts Board, all in their official capacities. In short, the plaintiffs have sued the State of Texas. . Terrazas v. Ramirez, 829 S.W.2d 712, 721 (Tex.1991) (citing Tex. Const. art. 4, § 22; Tex.Gov't Code § 402.021; further citations omitted). . Terrazas, 829 S.W.2d at 722; id. at 747 (Mauzy, J., dissenting) (at least seven justices agree that \"[tjhe attorney general is constitutionally empowered to execute a settlement agreement in litigation challenging a legislative redistricting plan.”). . The majority also makes much of the fact that the consent decree allows the State of Texas to take actions which would otherwise be prohibited by state law. I do not think that consideration of the merits of the proposed consent decree is appropriate at this juncture. We are a court of errors; the district court should have an opportunity to conduct a hearing and determine whether to enter the consent decree before we decide the merits of such action. I further note that although courts generally must defer to state apportionment policy in fashioning the remedy for" }, { "docid": "1748360", "title": "", "text": "C. Attorneys Fees Paragraph XVI, entitled Attorneys Fees, Costs and Expenses, expressly permits the plaintiffs to seek additional attorney’s fees if work is required in the future. REVIEW A consent decree in a class action Title VII case is subject to special scrutiny. The district court must find the decree fair, adequate and reasonable and the court must examine it carefully to ascertain not only that it is a fair settlement but also that it does not put the court’s sanction on and power behind a decree that violates Constitution, statute or jurisprudence. This requires a determination that the proposal represents a reasonable factual and legal determination based on the facts of record____ United States v. City of Miami, 664 F.2d 435, 441 (5th Cir.1981) (en banc); Williams, 729 F.2d at 1559. As in my prior opinion, this inquiry focuses on three criteria: (1) whether based on the record a reasonable factual and legal predicate exists for the decree; (2) whether it constitutes a fair and reasonable settlement with respect to the plaintiff class; and (3) whether its effect on third parties is unreasonable or unlawful. A. Factual and Legal Basis As recited in my prior opinion, the plaintiffs demonstrated at the first fairness hearing that had this case gone to trial they could have established a prima facie case of intentional discrimination against black officers. Accordingly, there is a legal and factual basis to support a judicial remedy embodied in a consent decree. Cf. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 1852-57, 90 L.Ed.2d 260 (O’Connor, J. concurring). Of course, that there exists a factual basis for a judicial remedy is not to say that the particular remedy selected is narrowly enough tailored to the asserted remedial goal. Id. 106 S.Ct. at 1857; Fullilove v. Klutznick, 448 U.S. 448, 484, 100 S.Ct. 2758, 2777, 65 L.Ed.2d 902 (1980). That issue is reserved for discussion hereafter in part C. B. Fair, Adequate and Reasonable? In assessing whether the proposed consent decree is fair, adequate and reasonable, I must consider six factors: (1) whether the settlement" }, { "docid": "8083613", "title": "", "text": "judgment that rejected the relief sought by some parties, Bradford and Montiel, and incorporated the relief proposed jointly by other parties, White and the State. In this circuit, a decree that provides a remedy agreed to by some, but not all, of the parties cannot affect the rights of a dissenting party. United States v. City of Miami, 664 F.2d 435, 442 (5th Cir.1981) (en banc) (opinion of Rubin, J.). Here, Bradford and Montiel are non-consenting dissenting parties. Indeed, they vigorously objected to the remedy White and the Attorney General proposed because, among other things, it would deprive them of their right to vote for judicial officers. B. Assuming, for sake of argument, that the district court’s judgment is a consent decree, we address the question whether, for that reason, the court had the authority to provide a remedy not authorized by the Voting Rights Act. White and the Department of Justice cite only one ease in support of the proposition that a district court, in entering a consent decree, may provide relief beyond that authorized by Congress. See Local No. 93, International Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 8063, 92 L.Ed.2d 405 (1986). That case, however, is inapposite. In Local No. 93, the plaintiffs, an association of black and Hispanic firefighters employed by Cleveland’s fire department, alleged that, in violation of Title VII of the Civil Rights Act of 1964, various city officials had discriminated against its members on the basis of race and national origin in hiring, assigning, and promoting firefighters. The city and the association entered into a settlement which, if approved by the court, would provide, among other things, prospective relief to unknown persons who had not suffered the alleged discrimination. The firefighters’ union intervened in the ease for the purpose of objecting to the settlement. It contended that Title VII barred the court from granting relief that benefitted individuals who were not actual victims of the discriminatory practices. See Civil Rights Act of 1964, Pub.L. No. 88-352, § 706(g)(2)(a), 78 Stat. 241, 261, 42 U.S.C. § 2000e-5(g)(2)(a) (1988 &" }, { "docid": "19336463", "title": "", "text": "virtue of his agreement as counsel that the State was a party to the agreement. The settlement and subsequent judgment do not, of course, prevent the state legislature from redistricting yet again. See App. 19. Notwithstanding the dissent’s claim, see post, at 584, nothing in Firefighters limits its rule to remedial consent decrees that follow an adjudication of liability. To the contrary, the holding in Firefighters was expressly based on the principle that “it is the parties’ agreement that serves as the source of the court’s authority to enter any [consent] judgment at all,” 478 U. S., at 522, and our opinion in that case makes no reference to any findings of liability. There is no merit to appellant’s contention that the District Court failed to adjudicate the constitutionality of District 21. See Brief for Appellant 35. The District Court noted the deference due the State, and expressly held Plan 386 to be constitutional. 920 F. Supp. 1248, 1255, 1256 (MD Fla. 1996) (“Plan 386 passes any pertinent test of constitutionality and fairness”). The distance is 50 .miles and record evidence indicates that only 15 of the 40 Senate districts in Florida cover less distance from end-to-end. See App. 26. The Supreme Court of Florida has held that the presence in a district of a body of water, even without a connecting bridge and even if such districting necessitates land travel outside the district to reach other parts of the district, “does not violate this Court’s standard for determining contiguity under the Florida Constitution.” In re Constitutionality of Senate Joint Resolution 2G, 597 So. 2d 276, 280 (Fla. 1992). In addition, only 9 of the State’s 40 Senate districts are located within a single county, and 5 of those are within Dade County. See App. 33. Multieounty districting also increases the number of legislators who can speak for each county, a districting goal traditionally pursued in the State. See id,., at 32, and n. 7. Record evidence indicates that the design of revised District 21 was also affected by the need to satisfy one-person, one-vote requirements, App. 28, the desire" }, { "docid": "3794111", "title": "", "text": "district court’s decision on a request to terminate or modify a consent decree is an exercise of that court’s equitable power: The essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action. Equitable remedies must be flexible if these underlying principles are to be enforced with fairness and precision. We remand for the district court to exercise this power. CONCLUSION For the reasons articulated above, we VACATE the district court’s decision and REMAND the case for further proceedings consistent with this opinion. . District court op. at 17. . District court op. at 14. . The consent decree is reprinted in full as an appendix to the panel opinion, United States v. City of Miami, Florida, 614 F.2d 1322, 1342 (5th Cir.1980), on rehearing, 664 F.2d 435 (5th Cir.1981) (en banc). The decree was entered over the objections of the unions that represented the Miami Police Officers, and the unions appealed. The former Fifth Circuit, sitting en banc, was unable to arrive at a majority consensus. United States v. City of Miami, Florida, 664 F.2d 435 (5th Cir.1981) (en banc). The mandate that the Fifth Circuit issued modified the decree to provide that it did not affect the promotion of members of the Police Department and remanded the case for the district court to determine whether the United States had a right to claim any relief concerning police promotion. Id. at 448. The court did not review and thus left in force those portions of the decree that did not affect members of the police unions. See id. at 445. On remand, the police unions consented to re-entry of the consent decree, with some modifications to those provisions pertaining to promotions in the Police Department. Because this appeal involves the Fire Department, not the Police Department, we recite the history of this litigation as it pertains to the Police Department only to the extent necessary to an understanding of this appeal. . 664 F.2d at 443. . Motion" }, { "docid": "2242783", "title": "", "text": "approve a settlement or to enter it as a consent decree, is not germane to this case which does not present any of those situations. Here, the only question remaining before us is whether the employer’s unilateral race- and gender-conscious action taken for the purported purpose of remedying disparate impact violates § 703(a). And that question is governed by Ricci, The Government first relies on United States v. City of Hialeah, 140 F.3d 968 (11th Cir.1998), and Kirkland v. N.Y. State Dep’t of Correctional Servs., 711 F.2d 1117 (2d Cir.1983). Both of these cases deal with court-approved employer action, not unilateral employer action. In City of Hialeah, the Eleventh Circuit reviewed a district court’s decision not to enter as a consent decree one part of a settlement agreement between the Government and the City of Hialeah. The disputed part of the consent decree purported to abrogate the contractual seniority rights of the city’s unionized incumbent police officers and firefighters. The unions had not been invited to participate in the settlement dis cussions, and they did not give their consent. The Eleventh Circuit held that “[a] district court may not enter parts of a proposed consent decree that operate to diminish the legal rights of a party who objects to the decree on that basis.” Id. at 984; see also United States v. City of Miami 664 F.2d 435, 436 (5th Cir.1981) (en banc) (Rubin, J., concurring); id. at 448 (Gee, J., concurring in part and dissenting in part). In the case before us, the district court did not enter the disputed portions of the settlement as a consent decree. The principle that a consent decree cannot dispose of the claims of a party that withholds its consent, therefore, has no application here. Kirkland involved this Court’s review of a district court’s decision, in a Title VII disparate-impact case brought by private plaintiffs, to enter a class action settlement pursuant to Fed.R.Civ.P. 23(e). See Kirkland, 711 F.2d at 1121. The settlement agreement called for adjustments to the eligibility lists derived from the allegedly discriminatory civil service examination. We affirmed the district" }, { "docid": "8776861", "title": "", "text": "The inter-venors argue that there was an insufficient predicate for the relief in this case because the consent decree contained a denial of liability and because Birmingham Reverse Discrimination, 833 F.2d at 1501 n. 22, forecloses the prima facie statistical showing from operating as a judicial finding of discrimination. We find their argument unpersuasive. First, as noted above, Wygant demonstrates that an employer’s denial of liability in the consent decree does not pre- elude approval of the decree. The government’s denial of liability did not bind the district court which was required to examine the consent decree, ascertain whether it represented a reasonable factual and legal determination based on the record, and ensure that it did not violate federal law. See United States v. City of Miami, 664 F.2d 435, 441 (5th Cir.1981) (Rubin, J., concurring); Cotton v. Hinton, 559 F.2d 1326, 1330-31 (5th Cir.1977). Wygant also makes it clear that a judicial finding is not required before a public employer adopts an affirmative action program or enters into a consent decree that provides race-conscious relief. Second, the footnote in Birmingham Reverse Discrimination, relied on by the in-tervenors, is inapposite and indeed irrelevant to the issue presented in this case. The footnote merely states that no judicial determination of discrimination had been made in that case, thereby distinguishing the affirmative action consent decree at issue in that case from court orders requiring affirmative action to remedy past discrimination. The footnote did not address the effect of a denial of liability in a consent decree nor did it state that a judicial determination of discrimination was a necessary component of a constitutional consent decree. We therefore hold that the government had a compelling and/or important interest in taking remedial action because it had sufficient evidence to justify a conclusion that there had been prior discrimination against blacks at Warner Robins. C. Narrowly Tailored To satisfy strict scrutiny, the promotional relief in the consent decree must be narrowly tailored. As we previously explained, the promotional relief provides that 240 qualified plaintiffs, who were employed at Warner Robins during the 1971-1979 period and" }, { "docid": "19336462", "title": "", "text": "authority in doubt, over against his representation to the contrary. The District Court indicated that it would look to the Florida House and Senate as an initial matter to fashion any new districting plan, see Tr. 14, 18-19, 21-22 (Sept. 27, 1995), and directed the state appellees to file a monthly “report informing the Court of any formal actions initiated by any public official or branch of government regarding Florida’s senatorial ‘reapportionment plan.’” Record 78, at 5. The Florida Senate filed such status reports as directed, indicating that apart from the ongoing litigation, no formal actions had been initiated by any public official or branch of state government regarding Florida’s senatorial plan. Record 121, 141, 160. The dissent challenges the authority of those representing the State House and Senate to speak for those bodies and further claims that even if they were authorized, the District Court was required to “demand clearer credentials” on their part. See post, at 586. However this may be, the State was represented by the attorney general and it is by virtue of his agreement as counsel that the State was a party to the agreement. The settlement and subsequent judgment do not, of course, prevent the state legislature from redistricting yet again. See App. 19. Notwithstanding the dissent’s claim, see post, at 584, nothing in Firefighters limits its rule to remedial consent decrees that follow an adjudication of liability. To the contrary, the holding in Firefighters was expressly based on the principle that “it is the parties’ agreement that serves as the source of the court’s authority to enter any [consent] judgment at all,” 478 U. S., at 522, and our opinion in that case makes no reference to any findings of liability. There is no merit to appellant’s contention that the District Court failed to adjudicate the constitutionality of District 21. See Brief for Appellant 35. The District Court noted the deference due the State, and expressly held Plan 386 to be constitutional. 920 F. Supp. 1248, 1255, 1256 (MD Fla. 1996) (“Plan 386 passes any pertinent test of constitutionality and fairness”). The distance" }, { "docid": "8083612", "title": "", "text": "our discussion in parts II and III makes clear, the remedy the district court prescribed in this case is foreclosed by the Voting Rights Act and by precedent. The Department of Justice concedes this point, but contends, as does White, that the district court’s final judgment is a “consent decree,” and that, as such, the judgment could provide relief beyond that authorized by the Act. We are not persuaded. A. First, the district court’s final judgment is not a consent decree. It is a final judgment, because it disposes of all of the claims and defenses of all of the parties in the case. See 28 U.S.C. § 1291; Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). But it is not a final consent decree, because not all of the parties consented to its entry. White, the Attorney General, the Department of Justice, and the district court refer to the final judgment as a “consent decree.” That, however, does not make it one. Here, the court entered a final judgment that rejected the relief sought by some parties, Bradford and Montiel, and incorporated the relief proposed jointly by other parties, White and the State. In this circuit, a decree that provides a remedy agreed to by some, but not all, of the parties cannot affect the rights of a dissenting party. United States v. City of Miami, 664 F.2d 435, 442 (5th Cir.1981) (en banc) (opinion of Rubin, J.). Here, Bradford and Montiel are non-consenting dissenting parties. Indeed, they vigorously objected to the remedy White and the Attorney General proposed because, among other things, it would deprive them of their right to vote for judicial officers. B. Assuming, for sake of argument, that the district court’s judgment is a consent decree, we address the question whether, for that reason, the court had the authority to provide a remedy not authorized by the Voting Rights Act. White and the Department of Justice cite only one ease in support of the proposition that a district court, in entering a consent decree, may provide relief beyond that" }, { "docid": "23188918", "title": "", "text": "Districts Board, all in their official capacities. In short, the plaintiffs have sued the State of Texas. . Terrazas v. Ramirez, 829 S.W.2d 712, 721 (Tex.1991) (citing Tex. Const. art. 4, § 22; Tex.Gov't Code § 402.021; further citations omitted). . Terrazas, 829 S.W.2d at 722; id. at 747 (Mauzy, J., dissenting) (at least seven justices agree that \"[tjhe attorney general is constitutionally empowered to execute a settlement agreement in litigation challenging a legislative redistricting plan.”). . The majority also makes much of the fact that the consent decree allows the State of Texas to take actions which would otherwise be prohibited by state law. I do not think that consideration of the merits of the proposed consent decree is appropriate at this juncture. We are a court of errors; the district court should have an opportunity to conduct a hearing and determine whether to enter the consent decree before we decide the merits of such action. I further note that although courts generally must defer to state apportionment policy in fashioning the remedy for a violation of Section 2, district courts have equitable power to depart from state law if necessary. See, e.g., White v. Weiser, 412 U.S. 783, 797, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335 (1983) (Constitution and Voting Rights Act limit judicial deference to state apportionment policy). If the court ultimately concludes that there is a reasonable factual and legal basis for finding such a violation, see City of Miami, 664 F.2d at 441, the exercise of such powers by way of a consent decree may be appropriate. . See Tex. Const. art. 5, § 7a(h) (\"Any judicial reapportionment order adopted by the board must be approved by a record vote of the majority of the membership of both the senate and house of representatives before such order can become effective and binding.”). . Chief Justice Phillips’s limited authority in this area distinguishes the case at bar from Baker v. Wade, 769 F.2d 289 (5th Cir.1985) (en banc), heavily relied upon by the majority. Unlike the district attorney in that case, who enjoyed specific authority under" }, { "docid": "23188712", "title": "", "text": "to decide whether it would “put the court’s sanction on and power behind a decree that violates Constitution, statute, or jurisprudence.” City of Miami, 664 F.2d at 441 (Rubin, J.). More precisely put, any federal decree must be a tailored remedial response to illegality. Cf. Shaw v. Reno, — U.S. -, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). We are asked to remand for this determination although we are not persuaded that there is any illegality. It is not a matter of our withholding announcement of our decision. We could not, in any event, remand without correcting the district court’s misapprehensions of law, found even by our dissenting colleagues. Significant legal errors infected the trial court’s earlier judgment, including its refusal to consider the effect of partisan voting, its finding of liability in Travis County now undefended, its selective aggregation of language . and ethnic minorities, its refusal to accord weight to the State’s linkage interest in the totality of the circumstances, and finally, its heavy reliance upon historical societal discrimination without bringing this history home to this case. We cannot escape this error-correcting task — and when it is done, there is no case. The amicus United States agrees with our conclusion that, once the proper legal standards are determined, the record presents no factual issue that needs revisiting. It follows that the proposed consent decree cannot respond to sufficiently identified illegality — because the record demonstrates that there is none. E. Chisom v. Edwards Finally, the parties urging remand point to Chisom v. Edwards, 970 F.2d 1408 (5th Cir.1992), where we remanded a voting rights case for the district court to enter a consent decree. That case challenged the method of electing Louisiana’s Supreme Court Justices. Chisom v. Roemer, — U.S. -,-, 111 S.Ct. 2354, 2358, 115 L.Ed.2d 348 (1991). Our remand in Chisom, however, resulted from different circumstances. First, all parties joined the motion to remand, as we were careful to point out in our order: The Joint Motion to Remand to Effectuate Settlement filed by all parties is hereby granted; and this case is remanded to" } ]

[ { "docid": "8310143", "title": "", "text": "to counsel for the creditors’ committee. During the course of the Chapter XI proceeding, Equitable and Hancock filed claims for moneys loaned pursuant to loan agreements dated October 29, 1973 and June 14, 1975 (hereinafter “loan agreements”). Included in these claims were the post-petition legal and collection costs here in issue. The loan agreements authorize the claimants, in case of default, to add collection costs, including reasonable attorneys’ fees, to the face amount of the loan. Thus, each of the agreements provides: “The [Debtor] covenants that, if it shall default in the making of any payment due under any Note, it will pay to the holder thereof such further amounts, to the extent lawful, as shall be sufficient to pay the costs and expenses of collection, including reasonable counsel fees.” Under the terms of the loan agreements, the filing of a petition in bankruptcy constitutes an event of default. Claimants urged below that they were entitled to be reimbursed for all expenses and attorneys’ fees reasonably incurred during the course of the Chapter XI proceeding. The debtor, on the other hand, argued that claimants were not entitled to any reimbursement for such fees and expenses. Judge Babitt, in a carefully considered opinion, allowed the claims to the extent that claimants could demonstrate such expenses were incurred for services incident to the separate rights of claimants as distinct from the rights of creditors generally. As already indicated, all parties appeal from this disposition. For the reasons which follow, we sustain the debtor’s position. Discussion We start off with the proposition that it is a primary purpose of the Bankruptcy Act to “bring about equitable distribution among creditors.” Kothe v. R. C. Taylor Trust (1930) 280 U.S. 224, 227, 50 S.Ct. 142, 143, 73 L.Ed. 382. In furtherance of this primary purpose, a bankruptcy court will not enforce any provision in a contract between a bankrupt (or debtor) and one of his creditors which — looking towards the possibility of bankruptcy — would give the latter a preferred position over other creditors in the event of such bankruptcy. Illustrative of this principle" } ]

[ { "docid": "18754763", "title": "", "text": "the bar of sovereign immunity and there was no problem of preferential distribution to a creditor. Equality of distribution among creditors of the debtor is one of the primary goals of the bankruptcy laws. E.g., Joint Industry Board of the Electrical Industry v. United States, 391 U.S. 224, 228, 88 S.Ct. 1491, 1493, 20 L.Ed.2d 546 (1968); 4 Collier on Bankruptcy ¶ 547.03[1] (15th ed. 1985). To say that it would be inequitable to apply 11 U.S.C. § 553’s limitations on setoff to recoupment is to fail to understand that Congress has carved out a limited exception to the rule of equal distribution by allowing setoff in the first place. See 4 Collier on Bankruptcy ¶ 553.02 (15th ed. 1985). Inferring that Congress intended to allow a general creditor to recoup his claims unconstrained even by the limits on setoff simply because recoupment, by definition, is not a setoff cuts directly against the equal distribution policy of the bankruptcy laws. I think the inference is incorrect. As the Supreme Court has noted, “ ‘The broad purpose of the Bankruptcy Act is to bring about an equitable distribution of the bankrupt’s estate....’ Kothe v. R.C. Taylor Trust, 280 U.S. 224, 227, 74 L.Ed. 382, 385, 50 S.Ct. 142 [143], and ‘... if one claimant is to be preferred over others, the purpose should be clear from the statute.’ Nathanson v. NLRB, 344 U.S. 25, 29, 97 L.Ed. 23, 29, 73 S.Ct. 80 [83].” United States v. Embassy Restaurant, 359 U.S. 29, 31, 79 S.Ct. 554, 555, 3 L.Ed.2d 601 (1959); accord County Sanitation District No. 2 v. Lor ber Industries of California, 675 F.2d 1062, 1065-66 (9th Cir.1982). That rule applies equally under the Bankruptcy Code. I am unable to find any statutory authorization for granting preferential treatment to a general creditor solely because that creditor’s claim arose from the same transaction as the trustee’s or debtor in possession’s claim. Recoupment has already been justified by analogy to the treatment of executory contracts in bankruptcy. Ashland Petroleum Co. 782 F.2d at 157. The theory advanced is that if the debtor takes" }, { "docid": "18754764", "title": "", "text": "purpose of the Bankruptcy Act is to bring about an equitable distribution of the bankrupt’s estate....’ Kothe v. R.C. Taylor Trust, 280 U.S. 224, 227, 74 L.Ed. 382, 385, 50 S.Ct. 142 [143], and ‘... if one claimant is to be preferred over others, the purpose should be clear from the statute.’ Nathanson v. NLRB, 344 U.S. 25, 29, 97 L.Ed. 23, 29, 73 S.Ct. 80 [83].” United States v. Embassy Restaurant, 359 U.S. 29, 31, 79 S.Ct. 554, 555, 3 L.Ed.2d 601 (1959); accord County Sanitation District No. 2 v. Lor ber Industries of California, 675 F.2d 1062, 1065-66 (9th Cir.1982). That rule applies equally under the Bankruptcy Code. I am unable to find any statutory authorization for granting preferential treatment to a general creditor solely because that creditor’s claim arose from the same transaction as the trustee’s or debtor in possession’s claim. Recoupment has already been justified by analogy to the treatment of executory contracts in bankruptcy. Ashland Petroleum Co. 782 F.2d at 157. The theory advanced is that if the debtor takes advantage of the favorable aspects of the contract postpetition then the debtor must bear the unfavorable prepetition burdens of the contract. United States v. Midwest Service and Supply (In re Midwest Service and Supply), 44 B.R. 262 (D.Utah 1983); In re Yonkers Hamilton Sanitarium Inc., 22 B.R. 427 (Bankr.S.D.N.Y.1982), aff'd, Sapir v. Blue Cross/Blue Shield (In re Yonkers Hamilton Sanitarium), 34 B.R. 385 (S.D.N.Y.1983). I disagree with these cases to the extent that they hold that the debtor’s continuance of a business relationship with the creditor justifies statutory, contractual, or common law recoupment of prepetition contract claims in the absence of court approved assumption of the contract. Congress has clearly authorized full satisfaction of valid prepetition claims for defaults by the debtor under an executory contract when the contract is assumed. 11 U.S.C. § 365(b)(1). I find no congressional authorization for preferential treatment of a contracting party’s prepetition claims in the absence of court approved assumption of the contract. Another shortcoming of the executory contract analogy is that recoupment is not limited to executory contracts" }, { "docid": "10244985", "title": "", "text": "discussion, however we will examine factor two, the benefit conferred on the estate. We reemphasize that the benefit must be conferred on all creditors in the proceeding, supra, which is consistent with the principle of maintaining equality of treatment to all creditors. See In the Matter of American Express Warehousing Ltd., 525 F.2d 1012 (2d Cir.1975). In In re United Merchants & Manufacturers, Inc., 10 B.R. 312 (S.D.N.Y.1981), counsel for lenders successfully challenged compensation requested by co-counsel to the creditors’ committee. Such fees were denied despite the fact that the loan agreement provided for attorneys’ fees to counsel and that said attorneys conferred a benefit to the estate. In denying the requested fees, the court recognized that the primary purpose of the Bankruptcy Act is “to bring about an an equitable distribution among creditors....” In re United Merchants & Manufacturers, Inc., 10 B.R. at 314 (quoting Kothe v. R.C. Taylor Trust, 280 U.S. 224, 227, 50 S.Ct. 142, 143, 74 L.Ed. 382, 385 (1930)). Thus, the Merchants court held that in “furtherance of this primary purpose, a bankruptcy court will not enforce any provision in a contract between a bankrupt (or debtor) and one of his creditors which ... looking towards the possibility of bankruptcy ... would give the latter a preferred position over other creditors in the event of such bankruptcy.” 10 B.R. at 314. On a similar note, in the case before us, the Trustee and U.S. Trust assert that the increased net recovery to Subordinated Debenture Holders of 2% on their claims as provided by the Amended Offer is essentially equal to the interest at prevailing rates from May 1979. Such assertion is based on the supposition that had Applicants Bader, Brewer and Robson not objected to the Original Offer, Galgay, BJ. could have conceivably entered an order on June 1,1979, ten days after the hearing on said offer. Accordingly, such order! would have become final on June 30, 1979 and distribution could have taken place on September 1, 1979. See Exhibit 46, at 6. At prime rate charged by banks on short term business loans, U.S." }, { "docid": "23014249", "title": "", "text": "subordination agreements in bankruptcy, based on strict third-party beneficiary contract law, is contrary to the equitable considerations and principles which permeate the rule of distribution of dividends among creditors similarly situated. * * * ” The court concluded that “ ‘only where * * * creditors rely on a subordination agreement should a court of equity employ the principle of estoppel to subordinate.’ ” We do not agree and find this position to be unsound. It is, of course, true that “the theme of the Bankruptcy Act is equality of distribution.” Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215, 219, 61 S.Ct. 904, 907, 85 L.Ed. 1293 (1940); see Kothe v. R. C. Taylor Trust, 280 U.S. 224, 227, 50 S.Ct. 142, 74 L.Ed. 382 (1930). These same equitable considerations, however, require that the concept of equal distribution be applied only to creditors of equal rank, i. e., creditors who are similarly situated. Creditors who expressly agree to subordinate their claims against a debtor and the creditors for whose benefit the agreement to subordinate is executed are not similarly situated. Subordination “agreements are almost uniformly enforced by bankruptcy courts * * 3 Collier, Bankruptcy [[ 65.06 at 2295; see Elias v. Clarke, 143 F.2d 640 (2d Cir.), cert. denied, 323 U.S. 778, 65 S.Ct. 191, 89 L.Ed. 622 (1944); In re Aktiebolaget Kreuger & Toll, 96 F.2d 768 (2d Cir. 1938); cf. Prudence Realization Corp. v. Geist, 316 U.S. 89, 97, 62 S.Ct. 978, 86 L.Ed. 1293 (1942); Calligar, Subordination Agreements, 70 Yale L.J. 376-404 (1961). The enforcement of lawful subordination agreements by bankruptcy courts does not offend the policy of equal distribution of the bankrupt’s estate. Section 65a of the Bankruptcy Act which provides that “[dividends of an equal per centum shall be declared and paid * * 11 U.S.C. § 105(a), “means no more than that dividends paid to creditors shall be pro rata except where there is a priority given by law or by lawful contractual arrangement between the parties.” In re Aktiebolaget Kreuger & Toll, supra 96 F.2d at 770. See also Elias v." }, { "docid": "13774971", "title": "", "text": "Matter of First Colonial Corp. of America, 544 F.2d 1291, 1298 (5th Cir.1977); see In re Emergency Beacon Corp., 71 B.R. 117, 119 (S.D.N.Y.1987). Allowance and Reasonability of Fee Awards Section 503 of the Bankruptcy Code grants the court power to order payment of fees from the debtor’s estate to compensate counsel who have made a substantial contribution to the case. In In re Sapphire SS Lines Inc., 509 F.2d 1242 (2d Cir.1975), the Second Circuit affirmed the general rule that the fees of counsel to individual creditors are not paid from the bankruptcy estate but acknowledged the power accorded by § 503 and explicated the three requirements necessary to create an exception to the general rule: first, that the trustee has refused or neglected to act; second, that applicant’s efforts conferred a tangible benefit on all creditors; and third, that the bankruptcy court have formally authorized the attorney to act instead of the trustee. See In re American Exp. Warehousing Ltd., 525 F.2d 1012, 1016 (2d Cir.1975) (explicitly re-affirming the Sapphire standards); see also In re General Oil Distributors Inc., 51 B.R. 794, 806 (Bkrtcy.E.D.N.Y.1985) (creditor’s attorney must ordinarily look to own client for payment unless attorney conferred significant benefit on estate and all creditors). The Bankruptcy Court Judge enjoys broad discretion, both in deciding whether to allow compensation and in determining the amount of compensation. Although in an effort to attract professionals of the highest caliber, the Code consciously abandons the spirit of economy which once dominated the Bankruptcy Court, protection of creditors’ rights and interests, including available assets, remains of highest priority and always deserves careful consideration in the administration of estates. The Bankruptcy Code specifies the following factors upon which to base compensation determinations: The time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title ... 11 U.S.C. § 503(b)(4). In a 1974 civil rights case the Fifth Circuit articulated a twelve factor approach for determining reasonable fee awards. These guidelines have been widely adopted in the Bankruptcy Courts. They are:" }, { "docid": "1076872", "title": "", "text": "In re French 111 B.R. 391 (Bankr.N.D.N.Y.1989). . In re Kero-Sun, Inc. 44 B.R. 121, 123 (Bankr.D.Conn.1984). . In re Kero-Sun, Inc. at 124. . 11 U.S.C. § 327 requires Court approval of the employment of professional persons such as accountants to represent or assist the trustee or debtor in possession if they are to be compensated from the bankruptcy estate. Bankruptcy Rule 2014 states that \"[a]n order approving the employment of ... accountants ... shall be made only on application of the trustee ... the application order shall state ... the professional services to be rendered.\" [Emphasis added.] It is said that the statute and applicable rule anticipate, by their use of future tense, that any professional services required by the state must be approved by the Court prior to their execution; see Grensky, supra note 1 at 188. . Consider also the Second Circuit decision of In re H.L.Stratton, Inc., 51 F.2d 984 (2d Cir.1931), where the Court also emphasized the need for rigorous compliance with General Order 44 and local rules in this regard but where, again, strict compliance would have resulted in the disqualification of attorneys ab initio, had proper application been made. . Similarly, in the case of In re American Express Warehousing Ltd., 525 F.2d 1012 (2nd Cir.1975), the Second Circuit, addressing the matter of attorney compensation, cited the need for prior Court authorization as one of the \"strict requirements” before which a creditor’s attorney can be awarded fees from the estate of a bankrupt. The Court there reaffirmed what it called \"the well-established New York Investors Exception\" for instances in which compensation sought for successfully opposing allowances to the Trustee or counsel. Thus the Court denied recovery to a creditor’s attorney for its successful opposition to certain applications of a creditors committee. . It should also be noted that counsel had failed (as of the time of the application for nunc pro tunc employment) to comply with the Court’s demand for an accounting of fees collected by him. . In re Triangle Chemicals, Inc., 697 F.2d 1280 (5th Cir.1983). . Consider, for example," }, { "docid": "1101399", "title": "", "text": "deems to be ‘fair’.” Schewe v. Fairview Estates (Matter of Schewe), 94 B.R. 938, 950 (Bankr.W.D.Mich.1989). The equitable powers of a bankruptcy court must be confined within the boundaries of the Bankruptcy Code. Id. (citing Norwest Bank, 485 U.S. at 206-07, 108 S.Ct. at 968-69). As stated in Interstate I, a fundamental policy of the entire Bankruptcy Code is the equality of distribution to similarly situated creditors. 71 B.R. at 744. Section 726(b), which provides that all claimants whose claims are entitled to the same class of distribution shall be reimbursed pro-rata, is a Congressional expression of this policy. This fundamental policy is a main objective of the Bankruptcy Code. We have often declared that the pro-rata distribution of the property of the bankrupt was the main purpose of the bankruptcy statute.... A serious defect in that statute would be developed if its provisions received such a construction as would enable the appellant to defeat that purpose by obtaining an advantage over other creditors. We are of the opinion that no such construction is demanded either by [the bankruptcy statute’s] letter or its spirit. Reed v. McIntyre, 98 U.S. 507, 512, 25 L.Ed. 171 (1879) (citation omitted). Accord, United States v. Embassy Restaurant, 359 U.S. 29, 31, 79 S.Ct. 554, 555, 3 L.Ed.2d 601 (1959); Nathanson v. NLRB, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23 (1952); Young v. Higbee Co., 324 U.S. 204, 210, 65 S.Ct. 594, 597, 89 L.Ed. 890 (1945); Sampsell v. Imperial Paper & Color Co., 313 U.S. 215, 219, 61 S.Ct. 904, 907, 85 L.Ed. 1293 (1941); Kothe v. R.C. Taylor Trust, 280 U.S. 224, 227, 50 S.Ct. 142, 143, 74 L.Ed. 382 (1930); Acme Harvesting Co. v. Beekman Lumber Co., 222 U.S. 300, 307, 32 S.Ct. 96, 99, 56 L.Ed. 208 (1911); First Nat’l Bank of Baltimore v. Staake, 202 U.S. 141, 148, 26 S.Ct. 580, 583, 50 L.Ed. 967 (1906); Boese v. King, 108 U.S. 379, 385-86, 2 S.Ct. 765, 769-70, 27 L.Ed. 760 (1883); Wukelic v. United States, 544 F.2d 285, 289 (6th Cir.1976); In re Kohler, 159 F." }, { "docid": "10244974", "title": "", "text": "by judicial legislation.” 3 Collier on Bankruptcy ¶ 62.21 (14th ed. 1977); accord Guerin v. Weil Gotshal & Manges, 205 F.2d 302 (2d Cir.1953) (denying fee allowance to petitioning creditors in hiring accountants to ascertain the insolvency of the alleged bankrupt for lack of statutory or equitable relief). Consequently, it is evident that the legislators contemplated fees being paid to trustees and in certain circumstances, particularly in involuntary bankruptcy proceedings, to creditors. Indeed, we note that even where the Act provides for attorneys’ fees, such allowance is limited to one attorney. Section 64 of the Act. Furthermore, pursuant to § 62 the courts have recognized the importance of centralizing responsibility in the trustee in an effort to “preserve the estate from applications for allowances by numerous importunate claimants.” In the Matter of Sapphire Steamship Lines, Inc. 509 F.2d 1242, 1245 (2d Cir.1975); see also In re New York Investors, Inc., 130 F.2d 90, 91-92 (2d Cir.1942). This is also consistent with the principle of maintaining equality of treatment among creditors so as to prevent unjust enrichment to those creditors who “rush in” to volunteer their services to the detriment of other creditors. See In re Siegel, 252 F. 197 (S.D.N.Y.1918). Consequently, anything done by a creditor’s attorney, unless previously authorized by the court and performed in direct employment by the Trustee, is considered by the court as a “gratuitous labor of love.” See 3 Collier on Bankruptcy 1162.29(3) at 1583 (14 ed. 1975). It is extremely important that the message in Collier be recognized by professionals because the bankruptcy system cannot or should not be perceived as a public trough at which professionals may feed. Although it may be argued that the bankruptcy court, as a court of equity, may award attorneys’ fees and expenses, we respond by acknowledging that “equity is grudgingly administered in the award of counsel fees.” Sapphire Steamship 509 F.2d 1242, 1245 (2d Cir.1975). Consequently, we reemphasize that an applicant must satisfy a great burden of proof to justify its request for compensation and expenses. In Sapphire Steamship, supra, the Second Circuit disallowed fees to counsel" }, { "docid": "2264204", "title": "", "text": "IRVING R. KAUFMAN, Chief Judge: The high cost of modern bankruptcy administration has been a matter of concern to both creditors and courts. In 1974, almost one-quarter of an average bankrupt’s estate was consumed by administrative expenses, and over one-third of this sum was expended on attorney’s fees. Our decision in In re Sapphire Steamship Lines, Inc., 509 F.2d 1242 (2d Cir. 1975), in part at least, reflects concern over the high cost of administering a bankrupt’s estate. There, we set forth three strict requirements before a creditor’s attorney could be awarded fees from the estate of a bankrupt: (1) the trustee or debtor in possession must have refused or neglected to act; (2) by proceeding in his stead, the creditor’s counsel must have conferred a tangible benefit upon all the creditors; and (3) the attorney must have secured prior court authorization to act in place of the trustee or debtor in possession. In this appeal, Dunnington, Bartholow & Miller (“Dunnington”), counsel to one of the creditors of American Express Warehousing Company, Ltd. (“Limited”), urges us to construe the Sapphire Steamship criteria broadly to permit it to recover for its successful opposition to a petition filed by Limited’s Official Creditors’ Committee (“OCC”). We decline the invitation, and hold that Sapphire Steamship bars Dunnington from receiving a fee from the debtor’s estate. I. The Chapter XI proceedings which spawned the claim now before us commenced more than ■ a decade ago and must rank among the most entangled ever presented to a Bankruptcy Court. A thorough familiarity with the intricate course of these proceedings is, fortunately, not required for resolution of the issues posed by the present appeal. A full statement of the underlying facts will be found in the cases cited in the margin. A brief overview, however, will place the competing contentions in proper context. Limited, the debtor, was a wholly-owned subsidiary of American Express Co. engaged in field warehousing. Its largest client was the Allied Crude Vegetable Oil Refining Corporation (“Allied”), now notorious for perpetrating “the Great Salad-Oil Scandal.” After Allied, on November 19, 1963, filed a petition" }, { "docid": "18555384", "title": "", "text": "not cognizable in bankruptcy, Judge Knapp recognized that a primary “purpose of the Bankruptcy Act is to bring about an equitable distribution of the bankrupt’s estate among creditors holding just demands . . . . ” Kothe v. R. C. Taylor Trust, 280 U.S. 224, 227, 50 S.Ct. 142, 143, 74 L.Ed. 382 (1930). He reasoned that this principle “should bar enforcement of any contractual provision which would permit one credi-lor — and not others — to charge the estate with legal expenses associated with processing a claim before a bankruptcy court.” 10 B.R. 312, 314 (S.D.N.Y.1981). Judge Knapp distinguished cases permitting secured creditors to recover attorney’s fees to the extent that their security covered such fees, e.g., James Talcott, Inc. v. Wharton (In re Continental Vending Machine Corp.), 543 F.2d 986 (2d Cir. 1976), on the ground that a secured creditor who asserts contractual rights in his security does not “impinge[] upon the administration of an estate in bankruptcy” because “the security has, in effect, been conveyed to such creditor, and his title thereto is superior to that of any trustee in bankruptcy.” 10 B.R. at 315. We cannot agree that the policy of equitable distribution renders ah unsecured creditor’s otherwise valid contractual claim for collection costs unenforceable in bankruptcy. When equally sophisticated parties negotiate a loan agreement that provides for recovery of collection costs upon default, courts should presume, absent a clear showing to the contrary, that the creditor gave value, in the form of a contract term favorable to the debtor or otherwise, in exchange for the collection costs provision. Such a creditor should recover more in the division of the debtor’s estate because it gave more to the debtor at the time it made the loan. Rather than providing an undeserved bonus for one creditor at the expense of others, allowing a claim under a collection costs provision merely effectuates the bargained-for terms of the loan contract. Moreover, the case law does not support a distinction between secured and unsecured creditors who seek to recover collection costs in bankruptcy. In Security Mortgage Co. v. Powers, 278" }, { "docid": "18555383", "title": "", "text": "agreements, section 11.2 gave rise to a contractual obligation provable in bankruptcy under section 63(a) of the Bankruptcy Act. Accordingly, Equitable and Hancock filed proofs of claim in the amounts of $66,374.21 and $68,762.68, respectively, for expenses incurred in protecting their interests in UM&M’s assets. The validity of a clause in a loan agreement providing for recovery of collection costs upon default is determined by state law. Security Mortgage Co. v. Powers, 278 U.S. 149, 153-54, 49 S.Ct. 84, 85 86, 73 L.Ed. 236 (1928); 3A Collier on Bankruptcy ¶ 63.15[1], [3] (14th ed. 1975). UM&M does not dispute that the collection costs provisions in this case are valid under New York law. See, e.g., Waxman v. Williamson, 256 N.Y. 117, 122-23, 175 N.E. 534, 536 (1931); Mead v. First Trust & Deposit Co., 60 A.D.2d 71, 76, 400 N.Y.S.2d 936, 938 (4th Dep’t 1977). Nevertheless, UM&M urges us to disallow appellants’ claims on the basis of policy considerations underlying the Bankruptcy Act. In ruling that an unsecured creditor’s contractually-based claim for collection costs is not cognizable in bankruptcy, Judge Knapp recognized that a primary “purpose of the Bankruptcy Act is to bring about an equitable distribution of the bankrupt’s estate among creditors holding just demands . . . . ” Kothe v. R. C. Taylor Trust, 280 U.S. 224, 227, 50 S.Ct. 142, 143, 74 L.Ed. 382 (1930). He reasoned that this principle “should bar enforcement of any contractual provision which would permit one credi-lor — and not others — to charge the estate with legal expenses associated with processing a claim before a bankruptcy court.” 10 B.R. 312, 314 (S.D.N.Y.1981). Judge Knapp distinguished cases permitting secured creditors to recover attorney’s fees to the extent that their security covered such fees, e.g., James Talcott, Inc. v. Wharton (In re Continental Vending Machine Corp.), 543 F.2d 986 (2d Cir. 1976), on the ground that a secured creditor who asserts contractual rights in his security does not “impinge[] upon the administration of an estate in bankruptcy” because “the security has, in effect, been conveyed to such creditor, and his title thereto" }, { "docid": "10044743", "title": "", "text": "the overriding purpose of bankruptcy liquidation: the expeditious reduction of the debtor’s property to money, for equitable distribution to creditors, Kothe v. R.C. Taylor Trust, 280 US 224, 227, 74 LEd 382, 50 SCt 142 [143] (1930). 4 Collier 11554.01. Forcing the trustee to administer burdensome property would contradict this purpose, slowing the administration of the estate and draining its assets.” Id. at-, 106 S.Ct. at 763, 88 L.Ed.2d at 870. Abandonment should not be ordered where the benefit of administering the asset exceeds the cost of doing so. Likewise, in In re Tyler, 15 B.R. 258 (Bankr.E. D.Pa.1981), the court stated: “The only issue before the court in an application for abandonment is whether there is a reason that the estate’s interest in the property should be preserved or, instead, whether the property is so worthless or burdensome to the estate that it should be removed therefrom.” Absent an attempt by the trustee to churn property worthless to the estate just to increase fees, abandonment should very rarely be ordered. Clearly, administration of the property at issue benefits the estate. Administering the property secures a fund equal to the amount of the tax liens, in excess of $156,000, to pay Chapter 11 administrative creditors. The argument that no benefit accrues to the estate from § 724(b) because distribution has not begun is unrealistic and unpersuasive. That would equate “benefit” with present “value,” making the 1984 amendment redundant. A future value accruing to the es tate from the property is a benefit promised by administration of the asset. “ ‘[A] trustee is under no duty to retain the title to a piece of property or a cause of action that is so heavily encumbered, or so costly in preserving or securing, that it does not promise any benefit to the funds available for distribution.’ ” Knapp v. Seligson (In re Ira Haupt & Co.), 398 F.2d 607, 612-13 (2d Cir.1968) (quoting 4A Collier, Bankruptcy, § 70.42 (14th ed. 1967)) (emphasis added), quoted in In re Pepper Ridge Blueberry Farms, 33 B.R. 696 (Bankr.W.D.Mich.1983). Here, because of § 724(b), administering the" }, { "docid": "13774970", "title": "", "text": "the district court should set aside findings of fact only if clearly erroneous, and should give due regard to the Bankruptcy Judge’s opportunity to assess the witnesses’ credibility. Case law elaborates on the bankruptcy rule, expressing the rarity of justified reversals: “The court should not lightly disturb a referee’s determination of fact and it is only when there is no evidence whatsoever to sustain his findings, that a reversal is justified — ” In re Savarese, 56 F.Supp. 927, 928 (E.D.N.Y.1944); see also In re Sussman, 88 F.Supp. 230, 232 (S.D.N.Y.1950) (only “glaring error” justifies reversal). More recently, this court has held specifically: [t]he standard of review on an appeal of a fee award from a bankruptcy court to a district court is that the decision will be affirmed unless the bankruptcy judge has abused his discretion — i.e., failed to apply proper procedures on legal standards, or made factual findings that were clearly erroneous. In re Ferkauf Inc., 56 B.R. 774, 775 (S.D.N.Y.1985) (citing Matter of Futuronics Corp., 655 F.2d 463, 471 (2d Cir.1981)); Matter of First Colonial Corp. of America, 544 F.2d 1291, 1298 (5th Cir.1977); see In re Emergency Beacon Corp., 71 B.R. 117, 119 (S.D.N.Y.1987). Allowance and Reasonability of Fee Awards Section 503 of the Bankruptcy Code grants the court power to order payment of fees from the debtor’s estate to compensate counsel who have made a substantial contribution to the case. In In re Sapphire SS Lines Inc., 509 F.2d 1242 (2d Cir.1975), the Second Circuit affirmed the general rule that the fees of counsel to individual creditors are not paid from the bankruptcy estate but acknowledged the power accorded by § 503 and explicated the three requirements necessary to create an exception to the general rule: first, that the trustee has refused or neglected to act; second, that applicant’s efforts conferred a tangible benefit on all creditors; and third, that the bankruptcy court have formally authorized the attorney to act instead of the trustee. See In re American Exp. Warehousing Ltd., 525 F.2d 1012, 1016 (2d Cir.1975) (explicitly re-affirming the Sapphire standards); see also" }, { "docid": "10244983", "title": "", "text": "the conduct of his own affairs. 15 U.S.C. § 77ooo(c) In addressing the objections raised by the Kurtz Objectants against U.S. Trust, Galgay, B.J. noted that: I am satisfied that U.S. Trust has adequately represented the interests of the 4%% Subordinated Debentureholders since the commencement of the bankruptcy case. U.S. Trust and its attorneys actively participated in the investigation of the Bank Claimants by the Trustee. In connection with the compromise and settlement of the claims of Secured Suppliers of Grant, holders of Grant 4%% Sinking Fund Debentures and the Bank Claimants, U.S. Trust was heavily involved. The assertion by the Kurtz Objectants that U.S. Trust is subject to disqualifying conflicts of interest because of other business relationships with Chase and one or more of the Bank Claimants is not substantiated by the record. There is no evidence that U.S. Trust has been negligent or otherwise deficient in the discharge of its responsibilities as Indenture Trustee for the 4%% Subordinated Debentures. Disqualification of an Indenture Trustee and its attorneys may not be granted on the basis of unsupported and ephemeral assertions. 4 B.R. at 84. Consequently, to award attorneys’ fees for services performed by an Applicant when in fact such services were performed satisfactorily by a trustee and an indenture trustee is seemingly incongruous and contrary to the precepts of bankruptcy. In the immediate case theories of equitable subordination, for example, were asserted and fully exhausted against the banks by both the Trustee and the Indenture Trustee. Yet, Applicants seek fees for the research and preparation of arguments addressing the theory of equitable subordination. See infra. Furthermore, as illustrated above, the contention that both the Trustee and the Indenture Trustee and their respective attorneys were in positions of conflict of interest and were thus unable to adequately perform their functions is unwarranted. See 4 B.R. at 80. Consequently, we are satisfied that neither the Trustee and its attorneys nor the Indenture Trustee and its counsel “refused” or “neglected to act.” See supra. As mentioned above, an Applicant’s failure to satisfy all three prongs precludes it from recovery. For purposes of" }, { "docid": "10244978", "title": "", "text": "Porto Rican American Tobacco Co., 117 F.2d 599 (2d Cir.1941); In re Progress Lektro Shave Corporation, 117 F.2d 602 (2d Cir.1941). In addressing the first factor, the Sapphire court stated as follows: A trustee “refuses” or “neglects” to act when he fails to satisfy a duty imposed upon him by the Bankruptcy Act, which requires that he marshall the assets of the bankrupt and, as with all his substantive duties, exercise reasonable care in so doing. 11 U.S.C. § 75. The trustee in this case did not refuse or neglect to pursue Sapphire’s antitrust cause of action, nor did the district court find that he violated his duty of care in that pursuit. Although subsequent events established that the strategic decision to recommend acceptance of the first offer of $1,600,000 was a mistake of judgment, to conclude therefrom, that the trustee “refused” or “neglected” to act would encourage creditors and their attorneys constantly to “second-guess” the trustee’s decisions. Such a result would contravene the policy of preserving the estate by centralizing responsibility in the trustee. 509 F.2d at 1245. Further, although the Sapphire court recognized that the creditors conferred a benefit in contributing to the creation of the additional fund, supra, counsel’s failure to obtain court authorization precluded it from receiving a fee allowance. The Sapphire court did recognize, however, that the Second Circuit had in the past waived court approval in special circumstances where, for instance, an objecting counsel successfully opposed exorbitant fee applications of the trustee and his counsel which the trustee would not oppose. See In re New York Investors, 130 F.2d 90 (2d Cir.1942). Nevertheless the Sapphire court held that counsel’s services in Sapphire were not brought on by any such circumstances. According to the court, to waive prior approval requirement for all cases in which counsel may successfully oppose the trustee “would contravene the policy of the Bankruptcy Act, and is not necessary for the protection of creditors.” 509 F.2d at 1246. The Sapphire decision, supra, exemplified the general reluctance of courts in granting relief to applicants who have not satisfied the requisite requirements. In" }, { "docid": "10244976", "title": "", "text": "for two creditors for such counsel did not satisfy its burden of proof in justifying a fee allowance. In that case, the debtor, prior to its adjudication as a bankrupt, instituted an action to recover from several antitrust violators. Special counsel for the trustee concluded that there was insufficient evidence on the issue of damages and, therefore, recommended that a settlement be accepted. 509 F.2d at 1243. Objections to such settlement were raised by counsel representing some of the creditors and the United States Government. In addressing the arguments raised by Winthrop, Stimson, Putnam & Roberts, counsel for the objecting creditors, the Second Circuit recognized that: Although it is true, as they point out, that the fund was created by the third offer of $2,473,070 which Winthrop, Stimson continued vigorously to oppose, the district court’s finding that the activities of the Winthrop, Stimson firm contributed to the reconsideration and disapproval of the first two offers is supported by the record, and, because the rejections of the first two offers were prerequisites for the proposal and eventual acceptance of the final settlement, it is a reasonable inference that Winthrop, Stimson “contributed to” the creation of the additional $800,000 fund. In spite of this finding, however, the district court was in error in holding that Winthrop, Stimson was entitled to fees from the bankruptcy estate. 509 F.2d at 1244-1245. (footnotes omitted) In its decision, the Sapphire court was guided by the general rule of disallowing attorneys’ fees from the estate and further noted that the case before it did not fall under any exception. Id. at 1244. In determining whether such an exception existed, the Second Circuit incorporated the use of a three-factor test which accordingly requires that an applicant requesting fees satisfy all three prongs. The applicant must prove the existence of the following: (1) the trustee has refused or neglected to act; (2) the applicant has conferred a tangible benefit on all creditors by acting in the trustee’s stead; and (3) the bankruptcy court must have formally authorized such attorney to act instead of the trustee. See also, In re" }, { "docid": "1121586", "title": "", "text": "Oil Co. v. Wolverton, 491 F.2d 361 (9th Cir.), cert. den. 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974). In bankruptcy proceedings, the court is necessarily confronted with the difficult task of allocating insufficient resources among meritorious claimants. “The broad purpose of the Bankruptcy Act is to bring about an equitable distribution of the bankrupt’s estate among creditors holding just demands based upon adequate consideration.” Kothe v. R. C. Taylor Trust, 280 U.S. 224, 227, 50 S.Ct. 142, 143, 74 L.Ed. 382 (1930); Standard Oil Co. v. Kurtz, 330 F.2d 178, 180 (8th Cir. 1964). Within the jurisdiction conferred by the Act, a bankruptcy court is essentially a court of equity, and its proceedings are inherently proceedings in equity. Pepper v. Litton, 308 U.S. 295, 304, 60 S.Ct. 238, 244, 84 L.Ed. 281 (1939); Matter of Amador, 596 F.2d 428 (10th Cir. 1979); In re Brooks & Woodington, Inc., 505 F.2d 794 (7th Cir. 1974). In exercising its equitable jurisdiction, the bankruptcy court must consider the circumstances surrounding any claim, emphasizing substance over technical considerations and form, to see that injustice or unfairness is not done in administration of the bankrupt estate. Pepper v. Litton, infra; IIT-Industrial Credit Co. v. Hughes, 594 F.2d 384, 386 (4th Cir. 1979). However, these equitable powers must be exercised within the jurisdiction and limits established by the bankruptcy court, to further its purpose, and subject to its specific provisions. In re Columbia Ribbon Co., 117 F.2d 999 (3d Cir. 1941); In re Dade County Dairies, Inc., 474 F.Supp. 438 (S.D.Fla.1979). IV The specific provision at issue here is Section 64(a)(1), 11 U.S.C. § 104(a)(1) (1976), which provides that “the costs and expenses of administration, including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition”, shall have priority. Priority is designed to assure payment, where possible, of certain classes of claims by requiring that they be paid first. The provision furthers the goal of equitable distribution of the debtor’s assets, in part by providing assurance to trustees and inducements for efficient bankruptcy administration. See In re" }, { "docid": "10044742", "title": "", "text": "Cir.1967); Seaboard National Bank v. Rogers Milk Products Co., 21 F.2d 414 (2d Cir.1927). Congress then gave the courts the power to order the trustee to abandon property at the request of a party in interest if the property was burdensome or valueless and of no benefit to the estate. 11 U.S.C. § 554(b) (1986 Supp.). An order compelling abandonment is the exception, not the rule. Abandonment should only be compelled in order to help the creditors by assuring some benefit in the administration of each asset. In dissent in Midlantic National Bank v. New Jersey Dep’t. of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986), Justice Rehnquist outlined the purposes of abandonment. “Abandonment is ‘the release from the debtor’s estate of property previously included in that estate.’ ... [Cjourts had developed a rule permitting the trustee to abandon property that was worthless or not expected to sell for a price sufficiently in excess of encumbrances to offset the costs of administration ... [footnote and citation omitted]. This judge-made rule served the overriding purpose of bankruptcy liquidation: the expeditious reduction of the debtor’s property to money, for equitable distribution to creditors, Kothe v. R.C. Taylor Trust, 280 US 224, 227, 74 LEd 382, 50 SCt 142 [143] (1930). 4 Collier 11554.01. Forcing the trustee to administer burdensome property would contradict this purpose, slowing the administration of the estate and draining its assets.” Id. at-, 106 S.Ct. at 763, 88 L.Ed.2d at 870. Abandonment should not be ordered where the benefit of administering the asset exceeds the cost of doing so. Likewise, in In re Tyler, 15 B.R. 258 (Bankr.E. D.Pa.1981), the court stated: “The only issue before the court in an application for abandonment is whether there is a reason that the estate’s interest in the property should be preserved or, instead, whether the property is so worthless or burdensome to the estate that it should be removed therefrom.” Absent an attempt by the trustee to churn property worthless to the estate just to increase fees, abandonment should very rarely be ordered. Clearly, administration of the" }, { "docid": "10244984", "title": "", "text": "basis of unsupported and ephemeral assertions. 4 B.R. at 84. Consequently, to award attorneys’ fees for services performed by an Applicant when in fact such services were performed satisfactorily by a trustee and an indenture trustee is seemingly incongruous and contrary to the precepts of bankruptcy. In the immediate case theories of equitable subordination, for example, were asserted and fully exhausted against the banks by both the Trustee and the Indenture Trustee. Yet, Applicants seek fees for the research and preparation of arguments addressing the theory of equitable subordination. See infra. Furthermore, as illustrated above, the contention that both the Trustee and the Indenture Trustee and their respective attorneys were in positions of conflict of interest and were thus unable to adequately perform their functions is unwarranted. See 4 B.R. at 80. Consequently, we are satisfied that neither the Trustee and its attorneys nor the Indenture Trustee and its counsel “refused” or “neglected to act.” See supra. As mentioned above, an Applicant’s failure to satisfy all three prongs precludes it from recovery. For purposes of discussion, however we will examine factor two, the benefit conferred on the estate. We reemphasize that the benefit must be conferred on all creditors in the proceeding, supra, which is consistent with the principle of maintaining equality of treatment to all creditors. See In the Matter of American Express Warehousing Ltd., 525 F.2d 1012 (2d Cir.1975). In In re United Merchants & Manufacturers, Inc., 10 B.R. 312 (S.D.N.Y.1981), counsel for lenders successfully challenged compensation requested by co-counsel to the creditors’ committee. Such fees were denied despite the fact that the loan agreement provided for attorneys’ fees to counsel and that said attorneys conferred a benefit to the estate. In denying the requested fees, the court recognized that the primary purpose of the Bankruptcy Act is “to bring about an an equitable distribution among creditors....” In re United Merchants & Manufacturers, Inc., 10 B.R. at 314 (quoting Kothe v. R.C. Taylor Trust, 280 U.S. 224, 227, 50 S.Ct. 142, 143, 74 L.Ed. 382, 385 (1930)). Thus, the Merchants court held that in “furtherance of this primary" }, { "docid": "1076873", "title": "", "text": "this regard but where, again, strict compliance would have resulted in the disqualification of attorneys ab initio, had proper application been made. . Similarly, in the case of In re American Express Warehousing Ltd., 525 F.2d 1012 (2nd Cir.1975), the Second Circuit, addressing the matter of attorney compensation, cited the need for prior Court authorization as one of the \"strict requirements” before which a creditor’s attorney can be awarded fees from the estate of a bankrupt. The Court there reaffirmed what it called \"the well-established New York Investors Exception\" for instances in which compensation sought for successfully opposing allowances to the Trustee or counsel. Thus the Court denied recovery to a creditor’s attorney for its successful opposition to certain applications of a creditors committee. . It should also be noted that counsel had failed (as of the time of the application for nunc pro tunc employment) to comply with the Court’s demand for an accounting of fees collected by him. . In re Triangle Chemicals, Inc., 697 F.2d 1280 (5th Cir.1983). . Consider, for example, the above described case of the auctioneer who conducted a private sale instead of an auction. . Consider, for example, In re French 111 B.R. 391 (Bankr.N.D.N.Y.1989). Moreover, while this Court has examined the Second Circuit cases, it has not examined every one of the 79 decisions said to be on point (see footnote 2 above). . The Grensky article argues against tests such as those proposed in the case of In re Twinton Properties Partnership, 44 B.R. 426 (Bankr.M.D.Tenn.1984), and in favor of the simple formulation adopted in the case of In re Coast Trading, Inc., 62 B.R. 664 (Bankr.D.Or.1986), in such instances. I agree with Grensky and with the Coast Trading court that the test should be simply this — Has the professional satisfactorily explained to the Court his or her failure to obtain prior court approval? .A reasonable explanation for delay in seeking approval is not the only basis for exception to the prior approval requirement; see the discussion above of the Second Circuit's decision in Sapphire. . Contrast, for example, Carlton" } ]

[ { "docid": "23303921", "title": "", "text": "(a)(2)(D); ' (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with any pertinent policy statements issued by the Sentencing Commission .... 18 U.S.C. § 3583(d). These provisions match the supervised release provisions set out in Section 5D1.3(b) of the United States Sentencing Guidelines. Therefore, “sentencing courts have broad discretion to tailor conditions of supervised release to the goals and purposes outlined in § 5D1.3(b),” and “a condition may be imposed if it is reasonably related to any one or more of the specified factors.” United States v. Chaklader, 232 F.3d 343, 348 (2d Cir.2000) (internal quotation marks omitted); United States v. Amer, 110 F.3d 873, 883 (2d Cir.1997). a) Advance Notification of Any Computers Used Balon’s first challenge to the special conditions deals with the notification provision requiring him to “provide the U.S. Probation Office advance notification of any eom-puter(s), automated service(s), or connected device(s) that he will use during the term of supervision.” Balón argues that the condition is overbroad because it covers a vast array of devices or services, such as automated banking and electronic airport check-in machines, that have nothing to do with the transfer of child pornography. He also argues that the provision occasions too great a deprivation of liberty because the purpose of the computer search condition is to monitor only his home computer. We may quickly dispose of Balon’s contention that the provision requires notice for use of any and all automated services “[b]ecause the term computer, as it is commonly understood, includes everything from an automated teller machine, to an airport self-service check-in kiosk.” Appellant’s Br. at 24. Conditions of supervised release need only “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” United States v. Simmons, 343 F.3d 72, 81 (2d Cir.2003) (internal quotation marks omitted); see also United States v. Gallo, 20 F.3d 7, 12 (1st Cir.1994) (“[F]air warning [of a probation order] is not to be confused with the fullest, or" } ]

[ { "docid": "8779401", "title": "", "text": "of a particular offense.” Id. at 1156 (quotation marks and further citations omitted). Its “findings may be based on any information other than materially false information.” United States v. Mayo, 642 F.3d 628, 631 (8th Cir.2011) (per curiam). However, a district court may not impose conditions “ ‘on the basis of pure speculation or assumptions.’ ” United States v. Fenner, 600 F.3d 1014,1027 (8th Cir.2010), quoting United States v. Kreitinger, 576 F.3d 500, 506 (8th Cir.2009). Finally, this court reviews the terms and conditions of supervised release for abuse of discretion, reversing when the sentencing court “fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits a clear error of judgment in weighing those factors.” United States v. Walters, 643 F.3d 1077, 1079 (8th Cir.2011), quoting United States v. Asalati, 615 F.3d 1001, 1006 (8th Cir.2010) (internal quotation marks omitted). Smith also challenges the conditions as “overbroad” or a “greater deprivation of liberty than is reasonably necessary.” On substantive review, this court considers the totality of the facts, including: the recency of the conduct prompting the conditions, the extent and severity of that conduct, the probation officer’s authority to waive the conditions, and how severely the conditions restrict the defendant’s liberty. See, e.g., United States v. Stults, 575 F.3d 834, 853 (8th Cir.2009); United States v. Smart, 472 F.3d at 556, 558-59 (8th Cir.2006). This court is “particularly reluctant to uphold sweeping restrictions on important constitutional rights,” and applies de novo review to such conditions. United States v. Kelly, 625 F.3d 516, 520 (8th Cir.2010) (quotation marks and citation omitted). B. Smith first argues that the district court failed to make individualized findings. The Government responds that any failure on the district court’s part to make individualized findings was harmless error because the supporting reasons are evident on the overall record. While this court encourages detailed findings, it is enough that the factual record supports the conditions imposed. See United States v. E.V., 500 F.3d 747, 754 (8th Cir.2007) (“we may affirm a sentence on any" }, { "docid": "23421012", "title": "", "text": "view the inference is rather obvious, that the general ban against pornography will provide a buffer against Perazza-Mercado acquiring child pornography. Furthermore, and again this hardly needed to be stated, allowing unfettered access to adult pornography could lead Perazza-Mercado — who has already evinced a predilection towards exploiting minors sexually — to places where opportunities may exist to commit other crimes against minors. As the condition is reasonably related to the goals of supervised release, I am left with the majority’s apparent position that the fact of conviction in this case cannot constitute evidentiary support for the ban on pornographic material. I disagree with that position; it obligates us to ignore what is perhaps the most critical component of a defendant’s criminal history when reviewing supervised release conditions. In determining whether the imposed conditions are justified, we are not required to turn a blind eye to the fact that Perazza-Mercado admitted to sexually abusing a minor. United States v. Voelker, 489 F.3d 139, 150 (3d Cir.2007) (“Although the court did not provide us with an explanation for this condition [], the conduct the defendant admitted to offers some support for this restriction.”); see United States v. Brogdon, 503 F.3d 555, 565 (6th Cir.2007) (relying on defendant’s previous convictions to support the condition imposed); see also United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir.2006) (establishing that a “court’s reasoning can often be inferred” by examining the record). Aside from our disagreement about the significance of the fact of conviction, there is additional evidentiary support for the supervised release condition in this case. As part of his plea agreement, Perazza-Mercado admitted to past behavior which the majority acknowledges exemplifies a “pattern of illicit conduct toward young girls.” Even were we exercising an abuse of discretion standard of review, this evidence, in conjunction with the fact of conviction, justifies the supervised release condition at issue here. Therefore, I cannot agree that, on plain error review, allowing the ban on pornographic material to stand would seriously impugn the “fairness, integrity, or public reputation of judicial proceedings.” See United States v. Torres, 541" }, { "docid": "4298265", "title": "", "text": "defendant. Id. at 752. Because the district court failed to comply with the rule that an inquiry about special conditions “ ‘must take place on an individualized basis,’ ” id. (quoting United States v. Davis, 452 F.3d 991, 995 (8th Cir.2006)), this court remanded for additional findings of fact and resentencing. The district court’s imposition of special condition 4 in this case suffers from the same flaw. The Presentence Investigation Report did not discuss pornography or recommend a special condition of supervised release banning pornography, and the district court did not explain why it prohibited Curry from possessing pornography as a special condition of supervised release. We do not foreclose the imposition of such a condition in a SORNA case, but as in Bender, the district court simply failed to make the individualized findings necessary to ensure that the special condition satisfies the statutory requirements. See 18 U.S.C. § 3583(d); United States v. Crume, 422 F.3d 728, 732-33 (8th Cir.2005). The procedural error is thus plain under current law. We also think Curry satisfies the remaining requirements for plain error relief. Although we have upheld restrictions on the possession of pornography against First Amendment challenges, see United States v. Simons, 614 F.3d 475, 483 (8th Cir.2010), and held that such a condition is not overly broad where a defendant with a history of sexual offenses is convicted of producing child pornography and the court desires to deter the defendant’s past conduct in the future, see United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007), Curry was convicted in the instant case of a registration offense, not a sexual exploitation offense, and given the factual distinctions from our precedent, we think there is at least a “reasonable probability” (i.e., less than a probability, see United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)) that the court may have omitted the special condition if the court had followed the requirement of Bender to provide an individualized explanation for the restriction. See United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir.2009). Because" }, { "docid": "20033677", "title": "", "text": "840, 843, 172 L.Ed.2d 596 (2009), but the District Court in this case did not. Because Thielemann’s sentence was otherwise reasonable, no justification exists for reversing the District Court because of its reliance on a currently valid Guideline. . A ban on sexually explicit material involving children is, of course, reasonable, but unnecessary considering child pornography is already illegal \"and the statutorily mandated conditions of supervised release require [defendants] to comply with\" child pornography laws. United States v. Voelker, 489 F.3d 139, 151 (3d Cir.2007). . Protected materials include \"nonobscene, sexually explicit materials involving persons over the age of 17.\" United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). . We recognize that a term of supervised release restricting access to adult sexually oriented materials must be \"narrowly tailored,” i.e., that the restriction must result in a benefit to public safety. United States v. Loy, 237 F.3d 251, 266 (3d Cir.2001). . The \"sexually explicit” materials condition in Voelker is nearly identical to the analogous Special Condition at issue in this appeal. . The children subjected to Thielemann’s sexual predilection may not, in the opinion of Thielemann’s psychiatrist, be directly physically harmed by Thielemann, but Dr. Rodgers, at no time, expressed herself about the psychological trauma experienced by these abused children. Can anyone doubt that an eight-year-old victim, abused by Phillips under the direction of Thielemann, will be psychologically scarred at present and during her later years? . The following terms appear in the text of the \"chat” and require further clarification. On each line of the \"chat” there is a time stamp indicating when each instant message in the “chat” was sent. The words preceding each time stamp are Thielemann’s and Phillips's respective computer user names. Thielemann’s, \"suckingunowinde,” stands for \"sucking you now in Delaware,” a reference to the performance of fellatio on another man. The meaning of Phillips’s user name, \"cp_2877,” is not entirely clear, but \"cp” presumably represents his initials (Christopher Phillips), and “2877” may refer to his birth date or some other significant number. Several internet slang abbreviations" }, { "docid": "20872873", "title": "", "text": "release a restriction on possessing or controlling materials containing nudity or depicting or alluding to sexual activity. The defendant, whose crime of conviction was possession of a firearm by a convicted felon, had two prior sexual-assault convictions. Id. at 518. The court said that “in crafting any special conditions [not directly related to the offense of conviction], district courts must be careful to conduct an inquiry on an individualized basis, looking at the specific facts of the defendant’s criminal history and his particular offenses.” Id. at 519-20 (internal quotation marks omitted). Because the district court had not made individualized findings and the probation officer’s justification for the condition was only the defendant’s prior sexual-assault convictions, the condition did not have the required reasonable relationship to the sentencing factors. See id. at 520. The court also said that it was “particularly reluctant to uphold sweeping restrictions on important constitutional rights,” id. (internal quotation marks omitted), and held that the condition was constitutionally overbroad, id. at 522. And in United States v. Voelker, 489 F.3d 139, 150-53 (3d Cir.2007), the Third Circuit vacated a condition prohibiting the possession of sexually explicit materials. After the defendant pleaded guilty to possession of child pornography, the district court imposed imprisonment and the challenged condition of supervised release. See id. at 142-43. The Third Circuit said that although the district court did not explain its reasons for imposing the condition, it could examine the record to determine whether the condition was reasonably related to the statutory factors. See id. at 150-51. The court concluded, however, that the condition did not have the requisite nexus to the goals of supervised release “and the District Court’s failure to explain its reasons ma[de] [the court’s] review all the more difficult.” Id. at 150. The court explained: At first blush, this restriction appears to be sufficiently related to [the defen dant’s] offense to survive his challenge. Although a ban on accessing sexually explicit material involving children would certainly be reasonable, there are First Amendment implications for a ban that extends to explicit material involving adults.... [N]othing on this record suggests" }, { "docid": "3554628", "title": "", "text": "the need to protect the public from further crimes of the defendant; and (iv) the need to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(l)-(2); see also Paul, 274 F.3d at 165. A condition satisfies the requirements if it is reasonably related to any of the four factors. United States v. Weatherton, 567 F.3d 149, 153 (5th Cir.2009). Second, supervised release conditions cannot involve a “greater deprivation of liberty than is reasonably necessary” to achieve the statutory goals. Paul, 274 F.3d at 165 (citing 18 U.S.C. § 3583(d)). Congress requires the sentencing court to state “the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). Accordingly, “courts of appeals have consistently required district courts to set forth factual findings to justify special probation conditions.” United States v. Warren, 186 F.3d 358, 366 (3d Cir.1999). Where the district court’s rationale is unclear, “it is incumbent upon us to vacate, though not necessarily to reverse.” United States v. Gilman, 478 F.3d 440, 446 (1st Cir.2007); see also United States v. Rhone, 535 F.3d 812 (8th Cir.2008) (vacating and remanding for resentencing where district court failed to adequately explain and record did not support .condition of supervised release); United States v. Voelker, 489 F.3d 139, 155 (3d Cir.2007) (remanding for resentencing because of district court’s failure to explain condition prohibiting defendant from possessing sexually explicit materials). In some cases, a court of appeals has affirmed where the “court’s reasoning can be inferred after an examination of the record.” See United States v. Perazza-Mercado, 553 F.3d 65, 76 (1st Cir.2009) (internal citation and quotation marks omitted). The district court abused its discretion by not explaining how Condition No. 6 is reasonably related to the statutory factors, and moreover, based on the record before us, it ;was an-abuse of discretion to conclude that Condition No. 6 is reasonably related to the sentencing factors. We vacate and remand for the district court to either articulate a reasonable relationship between Condition No.-6 and the statutory factors or dismiss the condition. i." }, { "docid": "23363137", "title": "", "text": "the defendant must participate in residential treatment. Accordingly, we do not vacate this condition. Prohibition on Possessing Sexually Explicit Materials Condition Mike contends that this condition is unrelated to his criminal history and the goal of preventing recidivism, is overly broad, and effects a greater deprivation of liberty than is necessary to achieve the goals of sentencing. Mike did not object to the imposition of this condition in his brief to the district court. Nevertheless, Mike now argues that his claim should not be subject to plain error review because the district court understood him to be objecting to all of the sex offender conditions imposed. We disagree. If Mike wanted to preserve his objections to this condition, he should have raised them in the same brief that he raised his objections to six of the other conditions the court imposed. Because he failed to do this, our review is for plain error. Mike’s first argument fails. This argument is premised upon the fact that there is no evidence that Mike has ever abused or even possessed pornography in the past, much less that it is likely to lead him to commit a sexual offense in the future. Two circuits have held in circumstances similar to those presented here that such a ban is impermissible. See United States v. Perazza-Mercado, 553 F.3d 65, 75-79 (1st Cir.2009); United States v. Voelker, 489 F.3d 139, 150-53 (3d Cir.2007). However, at least one circuit has reached a different conclusion. See United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir.1998). Therefore, in light of this split, and Mike’s background, namely the psychosexual evaluations performed in 2004 and 2005, the 2008 mental health assessment, and the gruesomeness of his 1997 sex offense, we cannot say that it is obvious or clear that the ban on his possession of sexually explicit materials is not reasonably related to any of the factors discussed in 18 U.S.C. § 3553(a). Thus, the court did not plainly err. Mike’s second and third arguments are, in essence, the same. Therefore, we will review them together. According to Mike, this condition" }, { "docid": "3565358", "title": "", "text": "here. Our conclusion is generally consistent with our sister circuits’ approaches to this challenging area. See, e.g., United States v. Antelope, 395 F.3d 1128, 1141-42 (9th Cir.2005) (striking down as unconstitutionally vague a supervised release condition banning the possession of “any pornographic, sexually oriented or sexually stim ulating materials”); United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir.2002) (striking down as unconstitutionally vague a supervised release condition banning the possession of “any pornography,” including legal adult pornography, because “a probationer cannot reasonably understand what is encompassed by a blanket prohibition on ‘pornography’ ”); United States v. Loy, 237 F.3d 251, 265 (3d Cir.2001) (striking down as unconstitutionally vague a supervised release condition banning the possession of “all forms of pornography, including legal adult pornography”); Farrell v. Burke, 449 F.3d 470, 486 (2d Cir.2006) (noting that the Second Circuit has “strongly suggested] that the term ‘pornography’ is inherently vague for defendants whose statute of conviction does not define it.” (citing United States v. Simmons, 343 F.3d 72 (2d Cir.2003)); ' United States v. Cabot, 325 F.3d 384 (2d Cir.2003)); see also United States v. Perazza-Mercado, 553 F.3d 65, 74-76 (1st Cir.2009) (vacating a condition of supervised release that banned the “possession of any kind of pornographic material” because the district court did not provide an explanation for this condition, and “no evidence in the record ... justifies the ban”); cf. United States v. Armel, 585 F.3d 182, 185-87 (4th Cir.2009) (holding that sentencing court abused its discretion by imposing an unexplained three-year prohibition on adult “pornography” where defendant had been convicted of threatening federal officials). But see United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007) (upholding the breadth of the supervised release condition in part because the defendant was found guilty of producing child pornography); United States v. Phipps, 319 F.3d 177, 192-93 (5th Cir.2003) (acknowledging that the ban on “sexually oriented or sexually stimulating materials” is “somewhat vague,” but narrowing it so that it does not reach magazines and so that “the prohibition on patronizing sexually oriented establishments refers ... to places such as strip clubs and" }, { "docid": "20872872", "title": "", "text": "to provide sufficient reasons for the condition. See id. at 451-53. And based on the court’s review of the record, there was “insufficient evidence of a reasonable relationship between the condition and the statutory factors.” Id. at 453. The court explained that “[n]othing in [the defendant’s] history suggested] that sexually stimulating materials fueled his past crimes” and “[i]n fact, there ha[d] been no evidence presented that [the defendant] ever used pornography.” Id. at 452. Further, there was “little indication that [the defendant] ha[d] a high potential for committing future sexual crimes” and “[i]t [was] hard to imagine how preventing [the defendant] from accessing sexually stimulating materials would prevent future criminal conduct when there [was] no indication in the record that [the defendant] ha[d] an unhealthy relationship with such materials or that such materials contributed to his underlying crimes or other violations.” Id. In United States v. Kelly, 625 F.3d 516, 519-20 (8th Cir.2010), the Eighth Circuit also emphasized the need for the district court to conduct an individualized inquiry before imposing as a condition of release a restriction on possessing or controlling materials containing nudity or depicting or alluding to sexual activity. The defendant, whose crime of conviction was possession of a firearm by a convicted felon, had two prior sexual-assault convictions. Id. at 518. The court said that “in crafting any special conditions [not directly related to the offense of conviction], district courts must be careful to conduct an inquiry on an individualized basis, looking at the specific facts of the defendant’s criminal history and his particular offenses.” Id. at 519-20 (internal quotation marks omitted). Because the district court had not made individualized findings and the probation officer’s justification for the condition was only the defendant’s prior sexual-assault convictions, the condition did not have the required reasonable relationship to the sentencing factors. See id. at 520. The court also said that it was “particularly reluctant to uphold sweeping restrictions on important constitutional rights,” id. (internal quotation marks omitted), and held that the condition was constitutionally overbroad, id. at 522. And in United States v. Voelker, 489 F.3d 139, 150-53" }, { "docid": "23420993", "title": "", "text": "the appellant’s criminal history”). “A condition with no basis in the record or with only the most tenuous basis, will inevitably violate 3585(d)(2)’s command that such conditions involve no greater deprivation of liberty than is reasonably necessary.” United States v. Pruden, 398 F.3d 241, 249 (3d Cir.2005) (internal quotation marks omitted). Thus, where we are unable, through our own examination of the record, to discern the court’s reasoning, “ ‘it is incumbent upon us to vacate, though not necessarily to reverse.’ ” Gilman, 478 F.3d at 446-47 (quoting United States v. Feliz, 453 F.3d 33, 36 (1st Cir. 2006)); see also United States v. Rhone, 535 F.3d 812 (8th Cir.2008) (vacating and remanding for resentencing where district court failed to adequately explain and record did not support condition of supervised release requiring defendant to register as a sexual offender); Voelker, 489 F.3d at 155 (remanding for resentencing because of district court’s failure to explain condition prohibiting defendant from possessing sexually explicit materials); United States v. Wallace, 461 F.3d 15, 43-45 (1st Cir. 2006) (same with respect to court’s failure to explain reasons for departing from sentencing guidelines). In this case, there is no evidence in the record that justifies the ban on Perazza-Mercado’s possession of all forms of pornography. There was no suggestion in the PSR or at sentencing that appellant had abused or even possessed pornography in the past, much less that it contributed to his offense or would be likely to do so in the future. We recognize that Perazza-Mercado’s pattern of illicit conduct toward young girls is cause for great concern, and, as we have explained, it certainly justifies some restriction on his internet access, which he could otherwise abuse at the expense of the public safety and deterrent goals of supervised release. In contrast, the record is devoid of any evidence suggesting that a complete ban on Perazza-Mercado’s possession of pornography-including legal material involving consenting adults — would serve the same purposes. If the district court believed that there was some relationship between the defendant’s possession and use of adult pornography and the likelihood that he" }, { "docid": "3565359", "title": "", "text": "F.3d 384 (2d Cir.2003)); see also United States v. Perazza-Mercado, 553 F.3d 65, 74-76 (1st Cir.2009) (vacating a condition of supervised release that banned the “possession of any kind of pornographic material” because the district court did not provide an explanation for this condition, and “no evidence in the record ... justifies the ban”); cf. United States v. Armel, 585 F.3d 182, 185-87 (4th Cir.2009) (holding that sentencing court abused its discretion by imposing an unexplained three-year prohibition on adult “pornography” where defendant had been convicted of threatening federal officials). But see United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007) (upholding the breadth of the supervised release condition in part because the defendant was found guilty of producing child pornography); United States v. Phipps, 319 F.3d 177, 192-93 (5th Cir.2003) (acknowledging that the ban on “sexually oriented or sexually stimulating materials” is “somewhat vague,” but narrowing it so that it does not reach magazines and so that “the prohibition on patronizing sexually oriented establishments refers ... to places such as strip clubs and adult theaters or bookstores”). The government argues that instead of vacating and remanding, we could avoid the condition’s constitutional difficulties through a “eommonsense” limiting construction. Some of our sister circuits have taken this approach in certain cases. For instance, when a supervised release condition prevents a supervisee from patronizing locations that offer sexually explicit materials, some courts have held that su-pervisees may go to libraries and grocery stores but not strip clubs and adult bookstores. See, e.g., United States v. Ellis, 720 F.3d 220, 226-27 (5th Cir.2013); United States v. Accardi, 669 F.3d 340, 346-47 (D.C.Cir.2012). In some cases, a limiting construction is the appropriate course. For example, in Schave, we found that constitutional difficulties could be “easily avoided through an appropriate limiting instruction.” 186 F.3d at 843. In that case, the defendant was a member of a white supremacist organization and sold explosives (to an undercover agent) that were meant to be used in violent acts that furthered the group’s aims. Id. at 840. A condition of supervised release provided that Schave “shall not" }, { "docid": "8395730", "title": "", "text": "in possession of a firearm was supported by sufficient evidence. It leaves Kelly’s second claim for relief — the argument that the district court exceeded its discretion in imposing special condition of supervision 15. The condition in question prohibits Kelly from possessing] [or] hav[ing] under his ... control any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material. This includes, but is not limited to, any material obtained through access to any computer, including a computer for employment purposes, or any other material linked to computer access or use. Judgment at 5. District courts have broad discretion in imposing conditions of supervised release, as long as each condition “1) is reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a); 2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a); and 3) is consistent with any pertinent policy statements issued by the Sentencing Commission.” United States v. Bender, 566 F.3d 748, 751 (8th Cir.2009) (citing 18 U.S.C. § 3583(d) and United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007)) (internal quotation marks omitted). In Kelly’s view, the condition in question fails both the first and the second prong of the test. We first address Kelly’s argument as to special condition 15 not being reasonably related to § 3553(a) sentencing factors. We review the condition for abuse of discretion. United States v. Davies, 380 F.3d 329, 332 (8th Cir.2004). “A condition is reasonably related to the statutory factors if tailored to the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medicinal, or other correctional needs.” United States v. Fenner, 600 F.3d 1014, 1026 (8th Cir.2010) (internal quotation marks and citation omitted). Courts can impose special conditions of supervised release not directly related to the offense for which the defendant is being sentenced where “the special conditions are related to another offense that the" }, { "docid": "20033676", "title": "", "text": "following the defendant’s sentencing. PSR 10. Lee Blotzer was sentence[d] to 155 months incarceration on March 10, 2008, for distribution of child pornography. PSR 9. The remaining six defendants were sentenced to between 22 months and 60 months incarceration, with five of the defendants being sentenced for possession of child pornography, which carries a ten year maximum sentence. PSR 11-15. . Thielemann also contends that the District Court erred in increasing his sentence based on U.S.S.G. § 2G2.1(b)(6)(B), which provides for a two-point sentencing enhancement when the persuasion, inducement, enticement, coercion, or solicitation of a minor for sexually explicit conduct is achieved by use of a computer. He claims that because nearly all child pornography is transmitted over the internet, this sentence enhancement for computer usage is redundant. Thielemann offers neither facts nor law to support his argument. Moreover, sentencing courts may disagree with the Guidelines based on policy, Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 570, 575, 169 L.Ed.2d 481 (2007), Spears v. United States, - U.S. -, -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009), but the District Court in this case did not. Because Thielemann’s sentence was otherwise reasonable, no justification exists for reversing the District Court because of its reliance on a currently valid Guideline. . A ban on sexually explicit material involving children is, of course, reasonable, but unnecessary considering child pornography is already illegal \"and the statutorily mandated conditions of supervised release require [defendants] to comply with\" child pornography laws. United States v. Voelker, 489 F.3d 139, 151 (3d Cir.2007). . Protected materials include \"nonobscene, sexually explicit materials involving persons over the age of 17.\" United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). . We recognize that a term of supervised release restricting access to adult sexually oriented materials must be \"narrowly tailored,” i.e., that the restriction must result in a benefit to public safety. United States v. Loy, 237 F.3d 251, 266 (3d Cir.2001). . The \"sexually explicit” materials condition in Voelker is nearly identical to the analogous Special Condition" }, { "docid": "12767272", "title": "", "text": "pornography over a four-day period and was not shown to be “obsessed with or addicted to child or adult pornography.” The sentencing record is to the contrary. Once the district court made adverse credibility findings, its most difficult task was to fashion a sentence that is “sufficient but not greater than necessary.” 18 U.S.C. § 3553(a). Given Deatherage’s false denials, likely abuse of three young girls and his own children, and possession of a large quantity of vile child pornography, imposing a maximum prison term (ten years) and a lifetime of supervised release warranted some consideration. The court instead imposed a prison term of 70 months — without doubt a substantial punishment but considerably less than sentences that have been imposed on other dangerous child sex offenders — and only ten years of supervised release. In these circumstances, stringent special conditions were necessary “to reflect the seriousness of the offense” and to “protect the public” — young children — “from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(A), (C). On this extensive evidentiary record that includes the court’s careful findings of fact, little additional explanation was needed to make the need for carefully tailored special conditions “discernable from the record.” A. Turning to the specific conditions at issue, Deatherage first argues that Special Condition 4 was an abuse of the court’s discretion because it includes a ban on adult pornography not supported by individualized findings and imposing a greater deprivation of liberty than necessary. We carefully review broad bans on possessing sexually explicit materials because they implicate important First Amendment rights. See, e.g., United States v. Kelly, 625 F.3d 516, 520-22 (8th Cir.2010). Thus, in United States v. Bender, 566 F.3d 748, 752 (8th Cir.2009), we vacated a broad ban on adult pornography explained only by the district court’s opinion that “a sex offender doesn’t have any business looking at Playboy magazine.” But we have upheld conditions that were obviously relevant to the child pornography offense at issue or to the defendant’s history' and characteristics. See United States v. Anderson, 664 F.3d 758, 768-69 (8th Cir.2012); United States v." }, { "docid": "22944846", "title": "", "text": "be considered as persuasive authority. Ballard v. Burton, 444 F.3d 391, 401 and n. 7 (5th Cir.2006). . The petition for revocation states: The offense details indicate the defendant took a female to a[n] open field where he beat, strangled, and raped her. After she pled for her life, he left her bound at the ankles and wrists and unclothed from the waist down. The victim managed to get only her feet untied and she ran to a nearby chemical plant, where workers discovered her walking with her hands bound and unclothed from the waist down. . We note that at least two of our sister circuits have vacated similar prohibitions against possessing adult pornography and remanded for resentencing where the district court failed to adequately explain and the court of appeals could not ascertain a viable basis for the imposition of the condition in the record. See United States v. Perazza-Mercado, 553 F.3d 65, 75-79 (1st Cir.2009) (holding that district court plainly erred in imposing a \"ban on the possession of adult pornography as a condition of supervised release, without any explanation and without any apparent basis in the record for the condition”); United States v. Voelker, 489 F.3d 139, 150-53 (3d Cir.2007) (holding on review for abuse of discretion that \"[[t]he district court] ignored our caution that 'the deprivation of liberty can be no greater than necessary to meet the goals [of 18 U.S.C. § 3583(d)(2)] .... [and] failed to provide an analysis or explanation to support this broad restriction’ ”). But see United States v. Daniels, 541 F.3d 915, 927-28 (9th Cir.2008) (holding that district court \"did not plainly err in limiting [defendant’s] possession of materials depicting sexually explicit conduct because the condition furthered the goals of rehabilitating him and protecting the public where defendant was convicted of possession of child pornography and could 'slip into old habits of amassing child pornography’ ”); United States v. Rearden, 349 F.3d 608, 611 (9th Cir.2003) (upholding similar condition on plain error review); United States v. Carpenter, 280 Fed.Appx. 866, 869 (11th Cir.2008) (\"With regard to the ban on possessing" }, { "docid": "3554629", "title": "", "text": "440, 446 (1st Cir.2007); see also United States v. Rhone, 535 F.3d 812 (8th Cir.2008) (vacating and remanding for resentencing where district court failed to adequately explain and record did not support .condition of supervised release); United States v. Voelker, 489 F.3d 139, 155 (3d Cir.2007) (remanding for resentencing because of district court’s failure to explain condition prohibiting defendant from possessing sexually explicit materials). In some cases, a court of appeals has affirmed where the “court’s reasoning can be inferred after an examination of the record.” See United States v. Perazza-Mercado, 553 F.3d 65, 76 (1st Cir.2009) (internal citation and quotation marks omitted). The district court abused its discretion by not explaining how Condition No. 6 is reasonably related to the statutory factors, and moreover, based on the record before us, it ;was an-abuse of discretion to conclude that Condition No. 6 is reasonably related to the sentencing factors. We vacate and remand for the district court to either articulate a reasonable relationship between Condition No.-6 and the statutory factors or dismiss the condition. i. The nature and circumstances of the offense and the history and characteristics of the defendant Salazar argues that the prohibition on sexually stimulating-materials does not adequately represent the nature and circumstances of his offense — failure to register as a sex offender under SORNA. However, a special condition that- is not related to the crime of conviction will nevertheless be upheld as long as it is justified by a defendant’s criminal history. See Weatherton, 567 F.3d at 153-54; see also United States v. Prochner, 417 F.3d 54, 63 (1st Cir.2005) (“[T]he fact that the special condition of sex offender treatment is not related to the crime of conviction does not, by itself, render the condition invalid.”). Nothing in Salazar’s history suggests that sexually stimulating materials fueled his past crimes. Further, the district court below did not explain why this restriction is necessary for Salazar. There does not appear to be any evidence that Salazar is a repeat offender of sex crimes or that access to pornographic materials contributed to his original offense. In fact, there" }, { "docid": "23421011", "title": "", "text": "Prochner, 417 F.3d 54, 63 (1st Cir.2005); United States v. York, 357 F.3d 14, 17 (1st Cir.2004) (same); see also United States v. Smith, 436 F.3d 307, 311 (1st Cir.2006) (“[T]he critical test is not whether [] an offense-specific nexus exists but, rather, “whether the challenged condition is sufficiently related to one or more [of the four] permissible goals of supervised release.’ ”) (citing United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000)); United States v. Bee, 162 F.3d 1232, 1235 (9th Cir.1998) (upholding ban on sexually stimulating material where defendant was convicted of sexually abusing a minor). A ban on pornographic material is reasonably related to at least two goals of supervised release. Perazza-Mercado pled guilty to sexually abusing a minor. Accordingly, preventing him from accessing pornographic materials is reasonably related to both the goal of deterring future criminal conduct against minors and the goal of protecting the public against further crimes involving the exploitation of minors. See § 3553(a)(2)(B), (C). It was reasonable for the sentencing judge to think, and in my view the inference is rather obvious, that the general ban against pornography will provide a buffer against Perazza-Mercado acquiring child pornography. Furthermore, and again this hardly needed to be stated, allowing unfettered access to adult pornography could lead Perazza-Mercado — who has already evinced a predilection towards exploiting minors sexually — to places where opportunities may exist to commit other crimes against minors. As the condition is reasonably related to the goals of supervised release, I am left with the majority’s apparent position that the fact of conviction in this case cannot constitute evidentiary support for the ban on pornographic material. I disagree with that position; it obligates us to ignore what is perhaps the most critical component of a defendant’s criminal history when reviewing supervised release conditions. In determining whether the imposed conditions are justified, we are not required to turn a blind eye to the fact that Perazza-Mercado admitted to sexually abusing a minor. United States v. Voelker, 489 F.3d 139, 150 (3d Cir.2007) (“Although the court did not provide us with an" }, { "docid": "9861182", "title": "", "text": "Medina from possessing illegal material, including, for example, child pornography. See 18 U.S.C. § 2252. With that portion of the condition out of the way, our attention focuses on the remainder of the condition, which would prohibit Medina from possessing and accessing “any form of pornography, erotica or sexually stimulating visual or auditory material.” In practical effect, this condition restricts only “legal material involving consenting adults,” United States v. Perazza-Mercado, 553 F.3d 65, 76 (1st Cir.2009), and the government does not argue otherwise to us. The government argues, as it did with respect to Medina’s challenge to the length of his supervised release term, that we may review the imposition of this condition only for plain error and not for abuse of discretion as would otherwise be the case. See id. at 69. Medina responds that he objected when the probation office recommended the condition in the pre-sentence report. However, Medina did not raise his objeetion at the sentencing hearing, despite the opportunity -that he had to do so and despite the fact that he raised other issues. Thus, here, too, we will assume that the plain error standard applies, as, once again, we find reversible error even under that more demanding standard. In challenging the condition, Medina relies primarily on our decision in Perazzctr-Mercado. There, we vacated on plain-error review a supervised release condition that imposed a complete ban on a defendant’s possession of pornographic materials. We explained that a district court must “provide a reasoned and case-specific explanation for the sentence it imposes.” Id. at 75 (quoting United States v. Gilman, 478 F.3d 440, 446 (1st Cir.2007)). And we concluded that the district court had failed to do so. See id. We did observe in Perazzar-Mercado that “ ‘a court’s reasoning can often be inferred’ after an examination of the record.” Id. (quoting United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir.2006) (en banc)). But we concluded that no ade quate explanation for the pornography restriction could be inferred from the record. Id. at 76. In particular, we observed, there was no evidence in the record sufficient" }, { "docid": "22273545", "title": "", "text": "enumerated in § 3553(a). 18 U.S.C. § 3583(d)(2). “Although the discretion thus conferred is broad,” an appellate court “will carefully scrutinize unusual and severe conditions.” United States v. Sofsky, 287 F.3d 122, 126 (2d Cir.2002) (internal quotation marks omitted). “The [district] court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence....” 18 U.S.C. § 3553(c). Accordingly, the court must explain the rationale for the special conditions it imposes. See United States v. Warren, 186 F.3d 358, 366 (3d Cir.1999) (“[C]ourts of appeals have consistently required district courts to set forth factual findings to justify special ... conditions.”); United States v. Kingsley, 241 F.3d 828, 836 (6th Cir.2001). While the district court in this case accurately described the special conditions as “very rigid,” it offered no explanation as to their necessity in Armel’s case. See 18 U.S.C. § 3553(c). Accordingly, we have no basis for determining whether they are reasonably related to the factors referred to in 18 U.S.C. § 3583(d)(1) and “involve[ ] no greater deprivation of liberty than is reasonably necessary.” 18 U.S.C. § 3583(d)(2). See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007) (noting that a key purpose of the explanation requirement is to “allow for meaningful appellate review”); United States v. Carter, 564 F.3d 325, 328 (4th Cir.2009). Imposition of the pornography prohibitions seems particularly inexplicable. Our sister circuits have vacated such conditions even in cases involving conviction for a sex offense. See United States v. Perazza-Mercado, 553 F.3d 65, 76 (1st Cir.2009) (vacating a special condition prohibiting the possession of pornography, imposed on a defendant convicted of sexual contact with a minor, because the sentencing court failed to explain the “relationship between the defendant’s possession and use of adult pornography and the likelihood that he would engage in sexual misconduct involving young girls”); United States v. Loy, 191 F.3d 360, 371 (3d Cir.1999) (remanding for an explanation of a similar special condition when the defendant was convicted of knowingly receiving child pornography). Surely, given that Armel’s underlying conviction was" }, { "docid": "4298266", "title": "", "text": "remaining requirements for plain error relief. Although we have upheld restrictions on the possession of pornography against First Amendment challenges, see United States v. Simons, 614 F.3d 475, 483 (8th Cir.2010), and held that such a condition is not overly broad where a defendant with a history of sexual offenses is convicted of producing child pornography and the court desires to deter the defendant’s past conduct in the future, see United States v. Boston, 494 F.3d 660, 667-68 (8th Cir.2007), Curry was convicted in the instant case of a registration offense, not a sexual exploitation offense, and given the factual distinctions from our precedent, we think there is at least a “reasonable probability” (i.e., less than a probability, see United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)) that the court may have omitted the special condition if the court had followed the requirement of Bender to provide an individualized explanation for the restriction. See United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir.2009). Because there is a complete lack of explanation for imposition of the condition, the error also substantially affects the fairness, integrity, or public reputation of judicial proceedings. See id. at 79. We therefore vacate special condition 4. On remand, the parties may seek to present evidence relating to this special condition, and the court should make particularized findings about any special condition that is imposed. The judgment of the district court is affirmed in part and vacated in part. The special conditions of supervised release numbered 4, 5, and 6 are vacated, and the case is remanded for resentencing." } ]

[ { "docid": "9804480", "title": "", "text": "two-count indictment charging the McKees with tax fraud under 26 U.S.C. § 7206(1) and 18 U.S.C. § 2. The case was assigned to a magistrate judge. The McKees filed several pretrial motions, including a motion to suppress and for a Kastigar hearing, which are bases of this appeal. After a hearing on the motion, the magistrate judge issued a lengthy report on September 26, 1997, recommending that the motion to suppress be denied. Although the McKees filed objections to the magistrate’s report, the district court adopted the recommendations of the magistrate judge in an opinion issued on February 9,1998. On February 13, 1998, the McKees filed a motion to dismiss for the IRS’s failure to conduct the criminal investigation according to its own regulations. On February 17, 1998 (supplemented by an additional order the following day), the district court denied this motion as well. This issue is also before us on appeal. McKee subsequently agreed to plead guilty, but reserved the right to appeal to this court. The charges against William McKee were dismissed. On March 3, 1998, the district court sentenced McKee to twelve months’ probation. This timely appeal followed. II. In reviewing the district court’s ruling on a defendant’s motion to suppress, we will uphold the district court’s factual findings unless they are clearly erroneous; however, we review the district court’s conclusions of law de novo. United States v. Dotson, 49 F.3d 227, 229 (6th Cir.1995). A finding of fact is clearly erroneous when, although there is some evidence to support the finding, upon review, we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Russell, 156 F.3d 687, 690 (6th Cir.1998) (quotation and citation omitted). III. A. McKee argues that her conviction is invalid for two reasons: (1) Loges should have turned the investigation over to the CID earlier than she actually did; and (2) Loges did not complete the “Form 2797” report in the course of her investigation. Both of these theories share the same underpinning-that Loges failed to comply with the relevant provisions contained in the IRS’s" } ]

[ { "docid": "9804494", "title": "", "text": "of revenue agents as to whether an initiation of a criminal investigation is warranted. See Peters, 153 F.3d at 453 & n. 11 (collecting cases). Loges testified before the magistrate judge that, in her experience, she generally “double check[s]” her work and gives taxpayers under investigation “the benefit of the doubt and any opportunity at all to answer the question” when she uncovers possible tax discrepancies. J.A. at 522. Given the ' deference that IRS agents must be afforded to carry out their official duties, we cannot say that Loges abused her discretion in continuing the investigation of the McKees and seeking explanations for the discrepancies after September 1992. We reach this conclusion reluctantly. It is particularly troubling that almost all of the government’s evidence against the McKees was practically handed to the CID on a silver platter as a result of the civil investigation. Cases involving similar factual scenarios as the one sub judice are not in short supply. See Peters; Wadena; Grunewald; Powell; Michaud; Caldwell; Groder; Kaatz; United States v. Piper, 681 F.Supp. 833 (M.D.Ga.1988). We recognize that revenue agents are not charged with criminal law enforcement. Nevertheless, as this case exemplifies, the reality is that revenue agents sometimes perform the same functions of evidence gathering as their CID counterparts, and such evidence is often admissible at a criminal trial. Our nation’s tax collection system is based on voluntary compliance. See Grower, 816 F.2d at 144; Tweel, 550 F.2d at 300. If the IRS’s internal operating procedures afford anything less than faithful adherence to constitutional guarantees, then public confidence in the IRS will necessarily be undermined. While we agree that the IRS’s “firm indication of fraud” rule comports with the requirements of the Constitution, we do encourage revenue agents to err on the side of protecting taxpayers’ constitutional rights when they conduct their investigations. C. McKee’s second argument is that Loges failed to comply with the Manual provisions requiring the preparation of a “Form 2797” report, which is the administrative form used to refer an investigation to the CID. After she and her husband had been indicted, McKee" }, { "docid": "9804474", "title": "", "text": "concludes with some sort of civil settlement between the IRS and the taxpayer, such an audit may uncover evidence that causes the revenue agent to refer the case to the CID for criminal investigation. Under IRS regulations, a revenue agent who uncovers a “firm indication of fraud on the part of the taxpayer” must immediately suspend her audit and refer the case to the CID. See Internal Revenue Manual § 4565.21(1). At that point, the CID enters the case and the IRS’ efforts become focused on the possibility of criminal [prosecution]. See generally Michael I. Saltzman, IRS Practice and Procedure ¶¶ 12.01 & 12.03[1][a]. Peters, 153 F.3d at 447. B. The facts underlying this appeal are generally not in dispute. McKee and her husband William McKee were managers and shareholders of an electrical services company called Valley Electric, Inc., in Knoxville, Tennessee. For seven months in 1991, a woman named June Pique worked at Valley Electric as a bookkeeper. In August 1992, Pique contacted IRS Revenue (ie., civil) Agent Dee Loges regarding possible tax violations on the part of the McKees. Most of the alleged improprieties involved the use of corporate funds for personal expenses, such as trips, household goods, and home utility bills. According to Pique, the McKees did not disclose this “additional” personal income on their income tax returns. Apparently, Pique had previously alerted Loges about violations in another unrelated tax investigation, and Loges believed Pique to be a credible source. Loges was informed later that month by another anonymous source (although she knew the person’s identity) that the McKees’ personal expenses were being paid through Valley Electric in the form of vacations, electric bills, food, and household necessities. Based on the information from both Pique and the anonymous source, Loges instituted a civil audit of the McKees in early September 1992. On September 2, 1992, Loges initiated contact with the McKees by sending them a letter requesting an appointment for an audit. The September 2, 1992 letter was a form letter setting forth the purposes of the audit. The letter informed the McKees of their right to" }, { "docid": "9804489", "title": "", "text": "United States v. Allen, 522 F.2d 1229, 1233 (6th Cir.1975) (“In the absence of a clear showing that the taxpayer has been tricked or deceived by the government agents into providing incriminating information, the documents and statements obtained by the Internal Revenue agents are admissible.”); Marra, 481 F.2d at 1203. From these precedents, it is incumbent upon McKee to show, by clear and convincing evidence, that (1) Loges made affirmative misrepresentations in the course of her investigation, and (2) because of those misrepresentations, McKee disclosed incriminating evidence to the prejudice of her constitutional rights. McKee can satisfy her burden, as a practical matter, by showing that Loges knowingly failed to comply with the Manual’s suspension-of-investigation rules. Cf. United States v. Wadena, 152 F.3d 831, 851 (8th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1355, 143 L.Ed.2d 517 (1999); accord Tweel, 550 F.2d at 299. Whether or not Loges had a firm indication of fraud and failed to suspend the civil audit is a question of fact to be reviewed for clear error. Wadena, 152 F.3d at 851. Upon review of the record, we cannot afford McKee the relief she seeks. McKee argues that Loges should have referred the case to the CID immediately, and should never have undertaken the civil investigation at all. McKee contends that Loges had the requisite “firm indication of fraud” on the part of the McKees when she received detailed information from two different Valley Electric employees (one of whom she knew to be a credible informant) alleging the same tax violations. Thus, McKee reasons, Loges’s entire civil investigation was a sham, and her true purpose was to gather evidence in hopes of eventually seeking criminal prosecution. McKee’s position leaves us unconvinced. We have no doubt that the IRS receives “tips” alleging tax violations, such as those provided to Loges on a daily basis from disgruntled employees, jilted spouses, or civic-minded citizens. That Loges received information alleging the same tax violations on the part of the McKees from two separate sources is hardly damning because the allegations were not substantiated by documentary evidence, nor any" }, { "docid": "13639178", "title": "", "text": "at 2. However, ”[r]eceipt of the complaint by the court clerk, rather than formal filing, determines the time of filing.\" Martin v. Demma, 831 F.2d 69, 71 (5th Cir.1987) (applying Louisiana statute of limitations applicable to personal injury cases in federal civil rights action). .Hickey’s other arguments require only brief discussion. Hickey asserts that the district court erroneously dismissed her complaint for want of subject matter jurisdiction, on account of lack of diversity. Although the magistrate noted that Hickey was \"a former citizen of Texas,\" there is no indication that the district court’s dismissal of Hickey’s complaint was in any way premised on lack of jurisdiction. See Record on Appeal at 5-8 (Findings, Conclusions and Recommendation of the United States Magistrate Judge), 15-16 (Judgment and Order). This argument is therefore without merit. Hickey also contends that the district court erred in dismissing her complaint pursuant to Fed.R.Civ.P. 12(b)(6). While the district court's judgment stated that Hickey’s complaint was “dismissed pursuant to Rule 12(b)(6),” see Record on Appeal at 16, we are convinced, after reviewing the record, that Rule 12(b)(6) actually was not the basis for dismissal. Rule 12(b)(6) deals with the dismissal of complaints for \"failure to state a claim upon which relief can be granted.\" See Fed.R.Civ.P. 12(b)(6). Neither a Rule 12(b)(6) motion nor any pleading was filed by IISD, whereby USD could have asserted that Hickey failed to state a claim upon which relief could be granted. Furthermore, the magistrate's Findings, Conclusions and Recommendation neither mentioned Rule 12(b)(6) nor suggested that Hickey had failed to state a claim. Consequently, it is clear that the district court dismissed Hickey’s complaint entirely on the basis of 28 U.S.C. § 1915(d), and that the district court’s reference to Rule 12(b)(6) was inadvertent. Lastly, Hickey argues that the district court erred by submitting her case to a magistrate without first obtaining her consent. We disagree. Hickey asserts that the magistrate proceeded under 28 U.S.C. § 636(c), which requires the consent of the parties. See 28 U.S.C. § 636(c) (1988). However, the magistrate did not exercise the powers conferred by § 636(c), such" }, { "docid": "9804479", "title": "", "text": "McKees, such as original documents instead of the provided copies. Loges finally conducted the audit with McKee and her husband on February 17, 1993. Loges directed several questions regarding the discrepancies of Valley Electric’s records at McKee, including why personal expenses did not get included in their shareholder/loan records. Loges also interviewed four or five Valley Electric employees in the course of her investigation. She did not have any contact with the CID during the civil investigation and audit. Following the February 17, 1993 meeting, Loges terminated all contact with the McKees and determined that a criminal referral might be appropriate. After several levels of review by the IRS’s Civil Division, the case was referred to the CID on May 5, 1993. The CID officially informed the McKees that they were under criminal investigation on November 9, 1993. The case was transferred to the U.S. Department of Justice Tax Division for evaluation for criminal prosecution on March 11, 1996. On March 4, 1997, a federal grand jury in the Eastern District of Tennessee returned a two-count indictment charging the McKees with tax fraud under 26 U.S.C. § 7206(1) and 18 U.S.C. § 2. The case was assigned to a magistrate judge. The McKees filed several pretrial motions, including a motion to suppress and for a Kastigar hearing, which are bases of this appeal. After a hearing on the motion, the magistrate judge issued a lengthy report on September 26, 1997, recommending that the motion to suppress be denied. Although the McKees filed objections to the magistrate’s report, the district court adopted the recommendations of the magistrate judge in an opinion issued on February 9,1998. On February 13, 1998, the McKees filed a motion to dismiss for the IRS’s failure to conduct the criminal investigation according to its own regulations. On February 17, 1998 (supplemented by an additional order the following day), the district court denied this motion as well. This issue is also before us on appeal. McKee subsequently agreed to plead guilty, but reserved the right to appeal to this court. The charges against William McKee were dismissed. On" }, { "docid": "13639165", "title": "", "text": "to proceed in forma pauperis and referred her case to a United States magistrate. In her Findings, Conclusions and Recommendation, the magistrate found that 1)‘ the limitations period applicable to'Hickey’s state and federal claims was two years; 2) Hickey’s claims were time-barred, since she had last attended Irving High School during the academic year 1988-89 — more than two years before the district court received her complaint on September 9, 1991; and 3) because Hickey’s claims were time-barred, they lacked an arguable basis in law, and were subject to dismissal pursuant to 28 U.S.C. § 1915(d). The Magistrate did not mention the possibility of tolling the statute of limitations. See Record on Appeal at 5-8. Hickey filed objections to the Magistrate’s Findings, Conclusions and Recommendation, in which she argiied that she did not reach the age of eighteen years until September 9, 1989, and that the statute of limitations should have been tolled until that date on account of her minority. See id. at 10. The district court adopted the magistrate’s Findings, Conclusions and Recommendation and dismissed Hickey’s complaint, without mentioning .the possibility of tolling. See id. at 15-16. II Hickey argues that the district court erred in dismissing her claims as time-barred because the statute of limitations was tolled until she turned eighteen. We review the district court’s ruling de novo. See Kennedy v. Electricians Pension Plan, IBEW # 995, 954 F.2d 1116, 1120 (5th Cir.1992) (district court’s ruling— that statute of limitations was inapplicable — reviewed de novo). The magistrate correctly concluded that the applicable statute of limitations was Tex.Civ.Prac. & Rem.Code Ann. § 16.-003(a) (Vernon 1986), which provides that “[a] person must bring suit for ... personal injury ... not later than two years after the day the cause of action accrues.” By its terms, section 16.003(a) applies to Hickey’s state law personal injury claims. Furthermore, section 16.003(a) is the appropriate statute of limitations to use in connection with Hickey’s claims under the Rehabilitation Act. The selection of a limitations period applicable to Rehabilitation Act cases is governed by 42 U.S.C. § 1988, which directs the court" }, { "docid": "9804499", "title": "", "text": "substantive consideration to the provisions in the Manual. See Crystal v. United States, 172 F.3d 1141, 1148 (9th Cir.1999); Groder, 816 F.2d at 142. . The IRS developed this rule as a response to the Fifth Circuit's decision in United States v. Tweel, 550 F.2d 297, 300 (5th Cir.1977), which characterized the IRS’s practice of conducting civil audits at the bequest of CID investigators as \"shocking.” . The test to determine a constitutional violation we announce today is closely related to the three-point test employed by the Eighth Circuit. See Wadena, 152 F.3d at 851; Grunewald, 987 F.2d at 534. The district court suggested that the Eighth Circuit’s test is different from reviewing whether the IRS complied with its own Manual provisions to honor the constitutional rights of taxpayers. See J.A. at 426 n. 9. Any differences are of form, not substance. If the revenue agent continues the civil audit even after she has developed \"firm indications of fraud,” then she is, in fact, making affirmative misrepresentations to the constitutional detriment of the taxpayer because she is gathering criminal evidence against the taxpayer under the guise of a civil proceeding. . McKee relies on United States v. Weiss, 566 F.Supp. 1452 (C.D.Cal.1983), which appears to be the only instance of a court dismissing a criminal indictment because of the government's failure to complete the Form 2797 per the Manual’s provisions. Even disregarding the questionable issue of whether Weiss court correctly determined that compliance with those provisions was mandated by the Constitution, Weiss is distinguishable because the court's finding — that the IRS had engaged in \"institutional bad faith” — was based on several governmental irregularities, including the improper utilization of civil summons to further an investigation wholly criminal in nature. Id. at 1453-55. Moreover, at least one circuit court has rejected the contention that an allegedly deficient Form 2797 mandates reversal of a conviction, which is essentially the argument McKee presents to us here. See United States v. Michaud, 925 F.2d 37, 42-43 (1st Cir.1991). DAVID A. NELSON, Circuit Judge, concurring. Because we conclude that Agent Loges was not shown" }, { "docid": "9804498", "title": "", "text": "690; Lockyer, 448 F.2d at 420-21. We are not persuaded by McKee’s bald and conclusory assertions that compliance with the provisions related to Form 2797 is “required to protect the citizen’s constitutional rights against self-incrimination and right to counsel.” McKee Br. at 25. Once the revenue agent has suspended her investigation, the taxpayer’s Fourth and Fifth Amendment rights are suffí-ciently honored. Whether or not the revenue agent completes the necessary paperwork as set forth in the Manual simply does not implicate the taxpayer’s constitutional rights( ) IV. For the reasons stated herein, McKee’s conviction is AFFIRMED. . All references to “McKee” are to Defendant-Appellant Iva McKee. . Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The purpose of a Kastigar hearing is to determine if the government's evidence was obtained in violation of the defendant’s Fifth Amendment rights. See, e.g., United States v. Overmyer, 899 F.2d 457, 460-62 (6th Cir.1990). . We note that the Fourth and Ninth Circuits deviate from the above approach by affording little, if any, substantive consideration to the provisions in the Manual. See Crystal v. United States, 172 F.3d 1141, 1148 (9th Cir.1999); Groder, 816 F.2d at 142. . The IRS developed this rule as a response to the Fifth Circuit's decision in United States v. Tweel, 550 F.2d 297, 300 (5th Cir.1977), which characterized the IRS’s practice of conducting civil audits at the bequest of CID investigators as \"shocking.” . The test to determine a constitutional violation we announce today is closely related to the three-point test employed by the Eighth Circuit. See Wadena, 152 F.3d at 851; Grunewald, 987 F.2d at 534. The district court suggested that the Eighth Circuit’s test is different from reviewing whether the IRS complied with its own Manual provisions to honor the constitutional rights of taxpayers. See J.A. at 426 n. 9. Any differences are of form, not substance. If the revenue agent continues the civil audit even after she has developed \"firm indications of fraud,” then she is, in fact, making affirmative misrepresentations to the constitutional detriment of the taxpayer because" }, { "docid": "9804488", "title": "", "text": "(“if a revenue agent continues to conduct a civil audit after developing ‘firm indications of fraud,’ a court may justifiably conclude that the agent was in fact conducting a criminal investigation under the auspices of a civil audit”). For these reasons, we agree that compliance with § 4565.21 is mandated by the Constitution. But see Groder, 816 F.2d at 142 (classifying § 4565.21 as essentially a procedural rule conferring “no substantive rights or privileges upon taxpayers”). Although we have not had occasion in recent years to address the implication of a taxpayer’s Fourth and Fifth Amendment rights during a civil IRS audit, we have done so in the past. This court has noted that “generally an affirmative misrepresentation by an IRS agent that the investigation is routine when in fact it is a criminal investigation requires suppression of evidence.” United States v. Nuth, 605 F.2d 229, 234 (6th Cir.1979). The Nuth court also stated that the evidence will be suppressed only upon a “clear showing that the taxpayer was tricked or deceived.” Id; see also United States v. Allen, 522 F.2d 1229, 1233 (6th Cir.1975) (“In the absence of a clear showing that the taxpayer has been tricked or deceived by the government agents into providing incriminating information, the documents and statements obtained by the Internal Revenue agents are admissible.”); Marra, 481 F.2d at 1203. From these precedents, it is incumbent upon McKee to show, by clear and convincing evidence, that (1) Loges made affirmative misrepresentations in the course of her investigation, and (2) because of those misrepresentations, McKee disclosed incriminating evidence to the prejudice of her constitutional rights. McKee can satisfy her burden, as a practical matter, by showing that Loges knowingly failed to comply with the Manual’s suspension-of-investigation rules. Cf. United States v. Wadena, 152 F.3d 831, 851 (8th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1355, 143 L.Ed.2d 517 (1999); accord Tweel, 550 F.2d at 299. Whether or not Loges had a firm indication of fraud and failed to suspend the civil audit is a question of fact to be reviewed for clear error. Wadena, 152" }, { "docid": "18258477", "title": "", "text": "PER CURIAM. Petitioner pro se Steven Finkelstein moves for a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) to permit him to appeal from so much of a judgment of the United States District Court for the Eastern District of New York, Joanna Seybert, Judge, as denied his petition for a writ of habeas corpus under 28 U.S.C. § 2254 vacating his New York State convictions for larceny and submission of false Medicaid claims (collectively the “fraud convictions”). Finkel-stein also appeals from so much of the judgment as denied his request for a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651, see, e.g., United States v. Baptiste, 223 F.3d 188, 189 n. 1 (3rd Cir.2000) (COA not required in order to seek review of denial of a petition for coram nobis). The district court denied habeas relief on the ground that Finkelstein was not in custody at the time his petition was filed; it denied co-ram nobis relief on the ground that the federal district courts lack jurisdiction to grant such relief from a judgment of a state court. For the reasons that follow, we deny the COA motion, and we affirm the denial of coram nobis relief substantially for the reasons stated by the district court. Finkelstein’s fraud convictions were entered in Nassau County Court, State of New York (the “state court”), in March 2003. He was sentenced principally to an indeterminate prison term of one and one-third to four years, and his convictions were affirmed. He served his prison term and was released on parole; he was discharged from parole in April 2005. In May 2005, Finkelstein filed a pro se petition in the district court for a “WRIT OF ERROR CORAM NOBIS,” citing, inter alia, 28 U.S.C. § 1651, seeking to vacate his state-court convictions on the ground that his “Federal and State Constitutional right[s] were violated because [he] was denied ... effective and meaningful assistance of coun[sel]” at trial. (Petition filed May 20, 2005, at 1.) In a Reply Affidavit dated June 21, 2005, Finkelstein urged the" }, { "docid": "9804486", "title": "", "text": "for a criminal prosecution against her and her husband. Although McKee voluntarily complied with all of Loges’s document and record requests, a “consensual search is unreasonable under the Fourth Amendment or violative of due process under the Fifth Amendment if the consent was induced by fraud, deceit, trickery or misrepresentation by the revenue agent.” Peters, 153 F.3d at 451; accord Powell, 835 F.2d at 1098. McKee’s argument — that her constitutional rights were violated — relies heavily on certain provisions of the Manual, which direct the revenue agent to suspend her civil investigation and turn the matter over to the CID once she has developed a “firm indication of fraud” warranting a criminal investigation. The “firm indication of fraud” rule is located in various provisions of the Manual, including § 4565.21(1), which states: If, during an examination, an examiner [i.e., revenue agent] uncovers a potentially fraudulent situation caused by the taxpayer and or the preparer, the examiner shall discuss the case at the earliest possible convenience with his/her group manager.... Once there is a firm indication of criminal fraud all examination activity shall be suspended. Inteenal Revenue Manual § 4565.21(1) (August 1, 1996). The Manual further outlines typical “Badges of Fraud” that the revenue agent can identify during the course of her investigation. Such “Badges of Fraud” include: understatement of income; claiming fictitious or improper deductions; accounting irregularities; improper allocation of income; and suspicious acts or conduct by the taxpayer. See id § 4231 HB 940 (April 23, 1981). We are satisfied that the Manual’s rule, requiring suspension of a civil investigation once the revenue agent has a “firm indication of fraud,” is the type of rule that is designed to protect the taxpayer’s constitutional rights. As the Eighth Circuit cogently explained: “Significantly different rights, responsibilities, and expectations apply to civil audits and criminal tax investigations. It would be a flagrant disregard of individuals’ rights to deliberately deceive, or even lull, taxpayers into incriminating themselves during an audit when activities of an obviously criminal nature are under investigation.” Grunewald, 987 F.2d at 534; see also Peters, 153 F.3d at 452" }, { "docid": "7818492", "title": "", "text": "not so “grossly disproportionate” to his crime as to violate the Eighth Amendment. In Harmelin, the defendant was convicted of simple possession and it was his first offense; while Hickey was convicted of conspiracy to distribute and it was his third offense. Moreover, applying the 100:1 ratio between crack and powder cocaine that this circuit has previously declared constitutional, see Pickett, supra, the amount of narcotics attributed to Hickey in the instant action was over 25 times the amount for which the defendant in Harmelin was sentenced to a life term. Because the circumstances underlying Hickey’s conviction and sentence are more egregious than those that justified the life sentence imposed in Harmelin, this court concludes that Hickey’s mandatory life term is constitutional. Accordingly, for these reasons and the reasons stated by the district court in its opinion, United States v. Hickey, 822 F.Supp. 408 (E.D.Mich.1993), this court concludes that Hickey’s mandatory life sentence did not violate the Eighth Amendment. Defendants Chambliss and Hill have asserted that they received ineffective assistance of counsel. Generally, an assignment of error charging ineffective assistance of counsel will not be considered on appeal because there is usually no record to support the allegations. United States v. August, 984 F.2d 705 (6th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 158, 126 L.Ed.2d 119 (1993). The customary procedure directs the defendant to address charges of ineffective assistance of counsel in a post-conviction proceeding under 28 U.S.C. § 2255. At this stage of appellate review, this court will only review the ineffectiveness charges if “the record is adequate to assess the merits of the defendant’s allegations.” August, 984 F.2d at 711. Because the record has not been adequately developed to enable this court to evaluate the effectiveness of counsels’ performance, these assignments of error will not be considered. Having reviewed the briefs and the record in its entirety, this court concludes that the remaining assignments of error asserted by Chambliss and Hill are without merit. Accordingly, for the reasons stated, the judgments of the district court are AFFIRMED. . Chambliss filed a notice of appeal more than" }, { "docid": "9804485", "title": "", "text": "portion of Home was only dicta in the opinion, we do note that then-Judge Breyer was a member of the Home panel, and we afford deference to his views. Moreover, the Seventh and Eighth Circuits have opined that a taxpayer may challenge a conviction by relying on the Manual’s provisions, so long as the taxpayer’s challenge was based on an alleged violation of a constitutional right. See Peters, 153 F.3d at 451-52 n. 9; United States v. Grunewald, 987 F.2d 531, 534 & n. 3 (8th Cir.1993). We approve of these approaches, and we will proceed accordingly. B. IRS regulations explicitly prohibit a revenue agent from developing a criminal case against a taxpayer under the guise of a civil investigation. See United States v. Powell, 835 F.2d 1095, 1100 n. 12 (5th Cir.1988) (citing Internal Revenue Manual, § 9311.83(1) ). McKee first argues that Agent Loges knew or at least strongly suspected from the outset that McKee had committed criminal tax violations, and only went through the guise of a civil audit to collect evidence for a criminal prosecution against her and her husband. Although McKee voluntarily complied with all of Loges’s document and record requests, a “consensual search is unreasonable under the Fourth Amendment or violative of due process under the Fifth Amendment if the consent was induced by fraud, deceit, trickery or misrepresentation by the revenue agent.” Peters, 153 F.3d at 451; accord Powell, 835 F.2d at 1098. McKee’s argument — that her constitutional rights were violated — relies heavily on certain provisions of the Manual, which direct the revenue agent to suspend her civil investigation and turn the matter over to the CID once she has developed a “firm indication of fraud” warranting a criminal investigation. The “firm indication of fraud” rule is located in various provisions of the Manual, including § 4565.21(1), which states: If, during an examination, an examiner [i.e., revenue agent] uncovers a potentially fraudulent situation caused by the taxpayer and or the preparer, the examiner shall discuss the case at the earliest possible convenience with his/her group manager.... Once there is a firm" }, { "docid": "9804473", "title": "", "text": "Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 801, 142 L.Ed.2d 663 (1999). We find the Seventh Circuit’s introductory explication helpful to the purposes of this case, and will repeat it here: The IRS splits the responsibility for enforcing the nation’s tax laws between its two investigative divisions. The Criminal Investigative Division (“CID”) is charged with investigating criminal violations of the tax code and related federal statutes. CID investigators are called “special agents.” Like many other criminal law enforcement agents, they carry firearms and badges. In addition, special agents must recite an administrative warning prior to soliciting information from taxpayers. See Beckwith v. United States, 425 U.S. 341, 343, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (quoting warning provided by special agents). On the other hand, the Examination Division of the IRS is responsible for conducting civil tax audits. Examination Division investigators are known as “revenue agents.” In contrast to special agents, revenue agents do not carry firearms; nor are they required to provide taxpayers with an administrative warning. Although an Examination Division audit typically concludes with some sort of civil settlement between the IRS and the taxpayer, such an audit may uncover evidence that causes the revenue agent to refer the case to the CID for criminal investigation. Under IRS regulations, a revenue agent who uncovers a “firm indication of fraud on the part of the taxpayer” must immediately suspend her audit and refer the case to the CID. See Internal Revenue Manual § 4565.21(1). At that point, the CID enters the case and the IRS’ efforts become focused on the possibility of criminal [prosecution]. See generally Michael I. Saltzman, IRS Practice and Procedure ¶¶ 12.01 & 12.03[1][a]. Peters, 153 F.3d at 447. B. The facts underlying this appeal are generally not in dispute. McKee and her husband William McKee were managers and shareholders of an electrical services company called Valley Electric, Inc., in Knoxville, Tennessee. For seven months in 1991, a woman named June Pique worked at Valley Electric as a bookkeeper. In August 1992, Pique contacted IRS Revenue (ie., civil) Agent Dee Loges regarding possible tax violations" }, { "docid": "22430367", "title": "", "text": "for summary judgment. The court treated Hickey’s new argument concerning post-termination hearing delay as a constructive motion to amend his complaint and gave the parties additional time to brief the issue whether leave to amend should be granted. In October 2002, the court denied leave to amend after finding that the amendment would be futile and would be made in bad faith. Hill and Graham appealed the'September 2002 order and Hickey appealed both the September and October orders. In November 2002 the city filed a motion for partial final judgment pursuant to Federal Rule of Civil Procedure 54(b). The District Court granted this motion over the plaintiffs’ opposition, reasoning that a final judgment under Rule 54(b) was necessary to terminate Hickey, Hill, and Graham’s claims because the September order was not final as to Murray’s claims. Hill, Hickey, and Graham appealed this decision as well. We consolidated all of the appeals for purposes of oral argument and resolve all of them in this opinion. II. Jurisdiction The District Court had jurisdiction over the plaintiffs’ federal claims and pendent state claims under 28 U.S.C. §§ 1331 and 1367, respectively. We have appellate jurisdiction to review the District Court’s final decisions pursuant to 28 U.S.C. § 1291. As noted, this case involves consolidated appeals. Because the officers’ appeal of the District Court’s January 2003 Rule 54(b) order implicates our jurisdiction over the officers’ other appeals we consider it in this section. Federal Rule of Civil Procedure 54(b) provides a mechanism for rendering a partial final judgment as to some, but not all, parties or claims in a single action. See Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 140 (3d Cir.2001). Without a valid Rule 54(b) order, we do not ordinarily have appellate jurisdiction over a district court order that resolves fewer than all the claims of all the parties in a single action because such orders do not constitute “final decisions” per 28 U.S.C. § 1291. Id. As explained below, we hold that the district court properly directed entry of partial final judgment in this case. Accordingly, we have jurisdiction" }, { "docid": "9804472", "title": "", "text": "OPINION NATHANIEL R. JONES, Circuit Judge. Defendant-Appellant Iva L. McKee appeals her conviction for tax fraud on the grounds that (1) the evidence against her should have been suppressed because the Internal Revenue Service’s (“IRS”) investigation violated her constitutional rights, and (2) the IRS failed to comply with its own regulations during the course of its investigation against her. We affirm McKee’s conviction, but not without reservations. I. A. This case illustrates that the substantive distinction between an IRS civil audit and a criminal tax investigation is not always clear. As the district court put it in a manner reminiscent of the Watergate Hearings, the issues in this case are essentially: “(1) What did the IRS know about the McKees’ individual and corporate tax affairs?; and (2) when did the IRS know it?” See J.A. at 420 n. 3 (Dist.Ct.Op.). In a recent opinion involving similar issues as the case sub judice, the Seventh Circuit provided preliminary background to the structure of IRS tax investigations. See United States v. Peters, 153 F.3d 445, 447 (7th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 801, 142 L.Ed.2d 663 (1999). We find the Seventh Circuit’s introductory explication helpful to the purposes of this case, and will repeat it here: The IRS splits the responsibility for enforcing the nation’s tax laws between its two investigative divisions. The Criminal Investigative Division (“CID”) is charged with investigating criminal violations of the tax code and related federal statutes. CID investigators are called “special agents.” Like many other criminal law enforcement agents, they carry firearms and badges. In addition, special agents must recite an administrative warning prior to soliciting information from taxpayers. See Beckwith v. United States, 425 U.S. 341, 343, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (quoting warning provided by special agents). On the other hand, the Examination Division of the IRS is responsible for conducting civil tax audits. Examination Division investigators are known as “revenue agents.” In contrast to special agents, revenue agents do not carry firearms; nor are they required to provide taxpayers with an administrative warning. Although an Examination Division audit typically" }, { "docid": "9804484", "title": "", "text": "the Manual’s provisions against recording interviews did not fall within the exclusionary rule because those particular violations of the Manual did not infringe on constitutional rights. Id. at 755-56, 99 S.Ct. 1465. Caceres, however, only rejected a per se rule that every violation of the Manual was tantamount to a due process violation. The Court did leave open the possibility that a federal court may enforce the Manual’s provisions when “compliance with the [provision] is mandated by the Constitution or federal law.” Caceres, 440 U.S. at 749, 99 S.Ct. 1465. Several circuits adhere to the view that a conviction may be overturned if the IRS is found to have violated a provision in its Manual “designed to protect the constitutional rights of taxpayers.” United States v. Horne, 714 F.2d 206, 207 (1st Cir.1983) (per curiam); accord United States v. Leahey, 434 F.2d 7, 10-11 (1st Cir.1970) (allowing due process claim where Special Agent failed to give taxpayer certain warnings as provided in Manual that he was the subject of a criminal investigation). Although the quoted portion of Home was only dicta in the opinion, we do note that then-Judge Breyer was a member of the Home panel, and we afford deference to his views. Moreover, the Seventh and Eighth Circuits have opined that a taxpayer may challenge a conviction by relying on the Manual’s provisions, so long as the taxpayer’s challenge was based on an alleged violation of a constitutional right. See Peters, 153 F.3d at 451-52 n. 9; United States v. Grunewald, 987 F.2d 531, 534 & n. 3 (8th Cir.1993). We approve of these approaches, and we will proceed accordingly. B. IRS regulations explicitly prohibit a revenue agent from developing a criminal case against a taxpayer under the guise of a civil investigation. See United States v. Powell, 835 F.2d 1095, 1100 n. 12 (5th Cir.1988) (citing Internal Revenue Manual, § 9311.83(1) ). McKee first argues that Agent Loges knew or at least strongly suspected from the outset that McKee had committed criminal tax violations, and only went through the guise of a civil audit to collect evidence" }, { "docid": "13639177", "title": "", "text": "on the basis of Hickey’s minority, no finding of fact was made as to Hickey’s age. See Record on Appeal at 5-8 (Findings, Conclusions and Recommendation of the United States Magistrate Judge). . See Trevino v. Castellow Chevrolet-Oldsmobile, Inc., 680 S.W.2d 71, 72-73 (Tex.App. — Corpus Christi 1984) (where four-year limitation period began to run on May 10, 1978, the last day to file suit was May 9, 1982), rev’d on other grounds, 690 S.W.2d 893 (Tex.1985). . \"If the last day of a limitations period under any statute of limitations falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day that the county offices are open for business.” Tex.Civ.Prac. & Rem.Code Ann. § 16.072 (Vernon 1986). . Although the magistrate stated that Hickey’s “claims ... were first received in [the district court] on September 9, 1991,” Record on Appeal at 7, the docket sheet shows that Hickey’s complaint was filed officially on September 16, 1991. See Record on Appeal, Civil Docket for Case #: 91-CV-1911, at 2. However, ”[r]eceipt of the complaint by the court clerk, rather than formal filing, determines the time of filing.\" Martin v. Demma, 831 F.2d 69, 71 (5th Cir.1987) (applying Louisiana statute of limitations applicable to personal injury cases in federal civil rights action). .Hickey’s other arguments require only brief discussion. Hickey asserts that the district court erroneously dismissed her complaint for want of subject matter jurisdiction, on account of lack of diversity. Although the magistrate noted that Hickey was \"a former citizen of Texas,\" there is no indication that the district court’s dismissal of Hickey’s complaint was in any way premised on lack of jurisdiction. See Record on Appeal at 5-8 (Findings, Conclusions and Recommendation of the United States Magistrate Judge), 15-16 (Judgment and Order). This argument is therefore without merit. Hickey also contends that the district court erred in dismissing her complaint pursuant to Fed.R.Civ.P. 12(b)(6). While the district court's judgment stated that Hickey’s complaint was “dismissed pursuant to Rule 12(b)(6),” see Record on Appeal at 16, we are convinced, after reviewing the" }, { "docid": "9804495", "title": "", "text": "833 (M.D.Ga.1988). We recognize that revenue agents are not charged with criminal law enforcement. Nevertheless, as this case exemplifies, the reality is that revenue agents sometimes perform the same functions of evidence gathering as their CID counterparts, and such evidence is often admissible at a criminal trial. Our nation’s tax collection system is based on voluntary compliance. See Grower, 816 F.2d at 144; Tweel, 550 F.2d at 300. If the IRS’s internal operating procedures afford anything less than faithful adherence to constitutional guarantees, then public confidence in the IRS will necessarily be undermined. While we agree that the IRS’s “firm indication of fraud” rule comports with the requirements of the Constitution, we do encourage revenue agents to err on the side of protecting taxpayers’ constitutional rights when they conduct their investigations. C. McKee’s second argument is that Loges failed to comply with the Manual provisions requiring the preparation of a “Form 2797” report, which is the administrative form used to refer an investigation to the CID. After she and her husband had been indicted, McKee requested release of her audit file, which the government produced on February 12, 1998. There was a Form 2797 in the McKees’ civil audit file, but it was only prepared with regards to Valley Electric, not the McKees personally. Moreover, the district court found that the Form 2797 report in this case was completed in 26 working days, not 15 as required by the Manual. Nevertheless, the district court determined that the “defendants have not suffered any prejudice as a result of this delay.” J.A. at 464. The relevant provision of the Manual reads as follows: If, during an examination, an examiner discovers a firm indication of fraud on the part of the taxpayer, the tax return preparer, or anyone aiding in preparing of supporting documents, the examiner shall suspend further examination activities at the earliest opportunity without disclosing to the taxpayer, the taxpayer’s representative, or employees, the reason for such suspension. The find ings should be discussed with the group manager and the DFC, in order to make a decision as to whether or" }, { "docid": "9804481", "title": "", "text": "March 3, 1998, the district court sentenced McKee to twelve months’ probation. This timely appeal followed. II. In reviewing the district court’s ruling on a defendant’s motion to suppress, we will uphold the district court’s factual findings unless they are clearly erroneous; however, we review the district court’s conclusions of law de novo. United States v. Dotson, 49 F.3d 227, 229 (6th Cir.1995). A finding of fact is clearly erroneous when, although there is some evidence to support the finding, upon review, we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Russell, 156 F.3d 687, 690 (6th Cir.1998) (quotation and citation omitted). III. A. McKee argues that her conviction is invalid for two reasons: (1) Loges should have turned the investigation over to the CID earlier than she actually did; and (2) Loges did not complete the “Form 2797” report in the course of her investigation. Both of these theories share the same underpinning-that Loges failed to comply with the relevant provisions contained in the IRS’s Internal Revenue Manual (hereinafter “Manual”). Although neither McKee nor the government raises the point, we must initially address whether a taxpayer may properly base a challenge to a tax conviction on the IRS’s alleged noncompliance with the procedures of its Manual. At first glance, our precedent suggests not. See Valen Mfg. Co. v. United States, 90 F.3d 1190, 1194 (6th Cir.1996). In that case, the taxpayer argued that the assessments levied against him for delinquent filings were invalid because the Manual suggested that his conduct was excused. We rejected this argument as meritless, and noted that the “provisions of the [IRS’s] manual ... only govern the internal affairs of the Internal Revenue Service. They do not have the force and effect of law.” Id. (quotations and citations omitted). This rule is based on the view that the Manual was generally created for the agency’s own internal administration, and not for the protection of taxpayers. See, e.g., United States v. Mapp, 561 F.2d 685, 690 (7th Cir.1977); United States v. Lockyer, 448 F.2d 417, 420-21 (10th" } ]

[ { "docid": "22947319", "title": "", "text": "court may: (1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release ...; (2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release ...; (3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony; or (4) order the person to remain at his place of residence during nonworking hours.... 18 U.S.C. § 3583(e) (emphasis supplied). The present controversy centers on the third of these four options. ■ The alteration statute empowers a resen-tencing court, in certain circumstances, to elongate a previously imposed term of supervised release, 18 U.S.C. § 3583(e)(2), or, in other circumstances, to revoke supervision and impose imprisonment in lieu of supervision, id. at § 3583(e)(3). What is unclear, and what has confounded the courts, is whether an intermediate resentencing option exists: Does the statute allow a court to revoke supervision and, in effect, restructure the defendant’s sentence by imposing a combination of imprisonment plus further supervision? Although this court has never addressed the question, a minimum of six circuits have read the statute to foreclose the reimposition of a term of supervised release following revocation" } ]

[ { "docid": "20695813", "title": "", "text": "2014, the court heard additional arguments and then ordered revocation, finding that Wright had violated two prongs of the Maine aggravated assault statute, as he “recklessly used a dangerous weapon, [Corsaro’s] car,” and manifested “extreme indifference to human life.” Turning to sentencing, the court found that Wright’s underlying criminal contempt conviction was a Class A felony under 18 U.S.C. § 3559(a), which carries a maximum revocation imprisonment sentence of five years, according to 18 U.S.C. § 3583(e)(3). The court considered the relevant sentencing factors and then sentenced Wright to below the five-year maximum, sentencing him to thirty months of imprisonment. This appeal followed. II. We review the district court’s ultimate decision to revoke supervised release for abuse of discretion, and the underlying finding of a violation of supervised release for clear error. United States v. Oquendo-Rivera, 586 F.3d 63, 66-67 (1st Cir.2009); United States v. Whalen, 82 F.3d 528, 532 (1st Cir.1996). We review the revocation sentence the court imposes for abuse of discretion, see United States v. Butler-Acevedo, 656 F.3d 97, 99 (1st Cir.2011), though our review of legal questions is plenary, United States v. O’Neil, 11 F.3d 292, 294 (1st Cir.1993). A. Aggravated Assault under Maine Law Under 18 U.S.C. § 3583(e)(3), a court may revoke a term of supervised release if the court “finds by a preponderance of the evidence that the defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). Wright challenges the court’s finding that he violated the term of his release that prohibits commission of a state crime. He argues that he did not commit aggravated assault under Maine law. We agree with the district court that Wright’s conduct during the July 20, 2014, incident constituted aggravated assault under § 208(1)(B), the “use of a dangerous weapon” prong of the Maine statute. See Me.Rev.Stat. Ann. tit. 17-A, § 208(1) (2014). As a result, we need not reach whether his conduct also qualifies under the “extreme indifference” prong, id. § 208(1)(C). Under applicable Maine law, criminal liability for aggravated assault attaches when a person “recklessly” causes bodily injury with “a dangerous weapon.” Id." }, { "docid": "22387498", "title": "", "text": "of discretion a district court’s decision to revoke a term of supervised release. See United States v. Schmidt, 99 F.3d 315, 320 (9th Cir.1996). According to 18 U.S.C. § 3583(e)(3), a district court may revoke a defendant’s supervised release if it finds by a preponderance of the evidence that the defendant violated a condition of his supervised release. However,, because the offenses that resulted in Musa’s original term of supervised release were Class B felonies, the district court could not sentence Musa to more than three years in prison for violating his supervised release. See 18 U.S.C. § 3583(e)(3). Musa concedes that his conviction for witness intimidation gave the court a proper basis to revoke his supervised release; he challenges only the length of sentence imposed and the court’s alleged failure to set forth its reasons for departing from the guideline range. When a court revokes supervised release, 18 U.S.C. § 3583(e) requires the court to consider the factors set forth in 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(6). Subsection (a)(4)(B) specifically addresses sentencing for violations of supervised release and directs the court to consider “the applicable guidelines or policy statements issued by the Sentencing Commission.” The Sentencing Commission has only issued “advisory policy statements” applicable to revocations of probation and supervised release instead of mandatory guidelines. U.S.S.G. Ch. 7, Pts. Al, A3(a); see also United States v. George, 184 F.3d 1119, 1121 (9th Cir.1999) (“Because the Commission has not yet issued guidelines relating to revocation of supervised release or changed its view that the Chapter 7 policy statements are merely advisory, we see no reason to reduce the flexibility of district courts in sentencing supervised release violators.”). We have held that a district court, when revoking supervised release, has discretion to go outside the suggested sentencing range of the policy statements up to the statutory maximum listed in 18 U.S.C. § 3583(e)(3). See George, 184 F.3d at 1122-23 (finding no error where the district court considered the 7- to 13-month range in the policy statements of Chapter 7, rejected it, and sentenced the defendant to 23 months imprisonment). The" }, { "docid": "8604694", "title": "", "text": "distribute and that this conduct violated the conditions of supervised release as a Class C felony under Maine State Law punishable by up to five years’ imprisonment. Me.Rev.Stat. Ann. tit. 17-A, § 1103(3)(A). Because of the five year possible punishment under Maine law, under federal law the Maine crime would amount to a Grade A violation of the terms of supervised release. U.S. Sentencing Guideline Manual § 7B1.1 The court therefore correctly concluded that the violation was a Grade A violation and revoked supervised release. At a subsequent sentencing hearing the court advised that it had carefully considered the history and background of the case, the papers on file, and what it had heard in the proceedings, as well as the advisory Guideline range and the statutory maximum of twenty-four months. The court concluded that an additional term of supervised release was not appropriate and that Mclnnis’s violations warranted a more severe sentence, and it imposed a sentence of twenty-four months. This appeal followed. DISCUSSION I. VALIDITY OF THE SENTENCE Because Mclnnis does not challenge the revocation of his supervised re lease, the only issue before us is the challenge to his sentence. We review revocation sentences for abuse of discretion. United States v. Ramirez-Rivera, 241 F.3d 37, 40-41 (1st Cir.2001). United States v. Booker, promulgating a reasonableness standard for review of Guideline sentencing decisions, is not relevant to the present case. See 543 U.S. 220, 125 S.Ct. 738, 756-57, 160 L.Ed.2d 621 (2005). The procedure for revocation of supervised release and imposition of a prison term is governed, not by the sentencing guidelines, ’ but by 18 U.S.C. § 3583(e).\" United States v. Work, 409 F.3d 484, 490 (1st Cir.2005). That section cabins the term of incarceration permitted in consequence of a supervised release violation with reference to the offense of conviction. See 18 U.S.C. § 3583(e)(3); Work, 409 F.3d at 490. Mclnnis makes no attempt to challenge his twenty-four month sentence as an abuse of discretion. He contends that the sentence was unreasonable, in essence making two points: (1) that his case lacks the aggravating factors found in" }, { "docid": "10504301", "title": "", "text": "violation. In this appeal, Carter contests the determination that his assault offense was a Grade A violation because he was not charged with or convicted of such an offense. He argues that this determination caused an incorrect Guidelines range and therefore a procedurally unreasonable sentence. II. Discussion A. Standard of Review In scrutinizing a sentence imposed, “we review a district court’s legal conclusions regarding the Guidelines de novo, its application of the Guidelines to the facts for abuse of discretion, and its factual findings for clear error.” United States v. Blackmon, 557 F.3d 113, 118 (3d Cir.2009) (internal citations omitted). Procedural errors are reviewed for abuse of discretion with varying degrees of deference depending on the nature of the particular error asserted. United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008). As such, “if the asserted procedural error is purely factual, our review is highly deferential and we will conclude there has been an abuse of discretion only if the district court’s findings are clearly erroneous.” Id. On the other hand, we give no deference to purely legal errors, such as “when a party claims that the district court misinterpreted the Guidelines.” Id. Facts relevant to the application of the Guidelines are established by a preponderance of evidence. See United States v. Grier, 475 F.3d 556, 568 (3d Cir.2007) (en banc); see also 18 U.S.C. § 3583(e)(3) (revocation appropriate if the court “finds by a preponderance of the evidence that the defendant violated a condition of supervised release”). B. Carter’s Sentence Supervised release requires “that the defendant not commit another Federal, State, or local crime during the term of supervision.” 18 U.S.C. § 3583(d). In revoking a term of supervised release, a district court considers the grade of violation — A, B, or C, with A being the most serious. See U.S.S.G. §§ 7B1.1-1.4. The grade of violation directly affects the Guidelines range for the resulting sentence. 1. Categorizing Violations of Supervised Release Grade A violations involve “conduct constituting ... a federal, state, or local offense punishable by a term of imprisonment exceeding one year that ... is a" }, { "docid": "21587318", "title": "", "text": "for several new drug-trafficking offenses. He was arrested six days later, on August 17, and detained pending trial. He ultimately pled guilty to the new charges on June 19, 2012, and, on September 20, a different district judge sentenced him to 150 months’ imprisonment, with credit for time served, followed by five years of supervised release. Marsh’s convictions for these later offenses established that he had violated the conditions of his supervised release by engaging in criminal activity. See 18 U.S.C. § 3583(d) (mandating, as a condition of supervised release, that “the defendant not commit another Federal, State, or local crime during the term of supervision”). Thus, on September 21, the day after his sentencing in the second case, the district court that presided over his 2004 conviction held a hearing to address the apparent violation. At the hearing, the court purported to revoke Marsh’s supervised-release term and to sentence him to the statutory maximum of 36 months’ imprisonment, to run consecutive to the 150 months imposed for the new charges. See Revocation Hr’g Tr. 24 (Sept. 21, 2012); see also 18 U.S.C. § 3583(e)(3). Marsh now appeals, raising two principal challenges. First, he contends that his supervised-release term ended on May 8, 2012, and that the district court consequently lacked jurisdiction in September 2012 to revoke his term of supervised release and to impose an additional period of incarceration. Second, he contends that even if the district court had jurisdiction, it plainly erred in sentencing him by, among other things, applying an across-the-board policy of imposing the maximum sentence available when a defendant commits a crime while on supervised release. Because we agree with Marsh’s first challenge— that the district court lacked jurisdiction to revoke his term of supervised release and to impose a further period of incarceration—we need not address the alleged defects in the district court’s sentencing procedures. II. As a threshold matter, Marsh contends that, in September 2012, the district court lacked authority to revoke his term of supervised release and to impose an additional period of imprisonment because he was no longer under its supervision." }, { "docid": "21532828", "title": "", "text": "in February 2016. At a revocation hearing held April 19, •2016, the district court explicitly relied on statements made by Speicher, the deputy sheriff, and Benita and found Petersen not totally credible. The district court found Petersen committed the new crime of solicitation to commit an aggravated misdemeanor, which it treated as a grade C violation under United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 7Bl.l(a)(3). Based on that violation and Petersen’s criminal history category II at the time of his original sentencing, the Guidelines range of imprisonment was 4 to 10 months. See id. § 7B1.4. The government requested a revocation sentence within the Guidelines range, but Petersen asked for no more than 30 days in jail. The district court considered the 18 U.S.C. § 3553(a) factors and noted Petersen had a history of mental illness, substance abuse, and violent tendencies and was a high risk to recidivate. The district court revoked Petersen’s supervised release and sentenced him to 8 months imprisonment followed by a one-year term of supervised release. Petersen filed this timely appeal, asserting (1) the evidence was insufficient to show by a preponderance that he committed a new offense, and (2) 8 months imprisonment was a substantively unreasonable sentence. II. DISCUSSION A district court may “revoke supervised release if the government proves by a preponderance of the evidence that the defendant violated a condition of supervised release.” United States v. Boyd, 792 F.3d 916, 919 (8th Cir. 2015); see also 18 U.S.C. § 3583(e)(3). We review such a revocation decision for abuse of discretion, and we review any findings of fact as to whether or not a violation occurred for clear error. See Boyd, 792 F.3d at 919. We reverse a revocation decision only if we have “ ‘a definite and firm conviction that the District Court was mistaken.’” Id. (quoting United States v. Willis, 433 F.3d 634, 636 (8th Cir. 2006)). The district court found by a preponderance of the evidence Petersen committed the state crime of soliciting an aggravated misdemeanor. Iowa Code § 705.1 prohibits “commanding], entreating], or otherwise attempting] to persuade [another] person" }, { "docid": "16557175", "title": "", "text": "The district court issued the rule on April 23, 2002, and after conducting a hearing on the matter, revoked Russell’s term of supervised release, pursuant to 18 U.S.C. § 3583(e)(3), sentencing him to the maximum term of imprisonment allowed (i.e., 36 months) and a new 46-month term of supervised release. Russell appeals. II. Russell brings two separate challenges to the term of supervised release imposed by the district court as part of his revocation sentence. First, he argues that the district court exceeded its authority under § 3583(e)(3) by sentencing him to a combined term of reimprisonment and additional supervised release in excess of his original term of supervised release. Second, he contends that once the district court imposed the maximum term of imprisonment allowed under § 3583(e)(3), it thereafter lacked the authority to sentence him to any amount of supervised release following his reincarceration. Whether the district court exceeded its authority under § 3583(e)(3) is a question of statutory construction which we review de novo. Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 855 (7th Cir.2002). A. Whether the district court exceeded its authority under § 3583(e)(3) by sentencing the defendant to a combined term of reimprisonment and additional supervised release in excess of his original term of supervised release. At the time of Russell’s conviction for bank robbery in January 1994, 18 U.S.C. § 3583(e)(3) (1988 ed., Supp. V) authorized district courts to: revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for the time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison, if the offense for which the person was convicted" }, { "docid": "19032556", "title": "", "text": "to time served. In 2007, Hergott was again charged with violating the terms of his supervised release by committing felony assault and failing to complete a required substance abuse treatment program. He admitted the allegations and received the sentence at issue on this appeal. At his sentencing on the 2007 violation, the district judge revoked Hergott’s supervised release and sentenced him to sixty months’ imprisonment. Under the version of 18 U.S.C. § 3583(e)(3) in effect at the time of sentencing, sixty months was the maximum sentence allowable where the violator’s original offense was a Class A felony. This was an upward departure from the eighteen to twenty-four months recommended by the U.S. Sentencing Guidelines. Hergott objected to the sentence, arguing that the district court was required to apply the version of § 3583(e)(3) in effect at the time he committed the original offense, and therefore the sixty-month sentence must be reduced by the seventy-two days he served on the first revocation. Nonetheless, the district court entered a sentence of sixty months’ imprisonment with no supervised release to follow. I. Hergott appeals his sentence as illegal, arguing that it exceeds the statutory maximum contained in the version of 18 U.S.C. § 3583(e)(3) in effect on July 19, 2002, the date of his methamphetamine and firearm convictions. We review the legality of a revocation sentence de novo. United States v. Lewis, 519 F.3d 822, 824 (8th Cir.), cert. denied, — U.S. -, 129 S.Ct. 166, 172 L.Ed.2d 120 (2008). Hergott argues that under the correct version of § 3583(e)(3), the statutory maximum term of imprisonment for revocation of supervised release is sixty months minus any time served on previous revocations related to the same conviction. See id. (“Section 3583(e)(3) formerly required the aggregation of any prison sentences imposed for revocations of supervised release linked to a crime committed before April 30, 2003.”). By contrast, § 3583(e)(3) was revised in 2003 as part of the PROTECT Act to allow for a full sixty months’ imprisonment on each revocation. Id. (interpreting the 2003 amendments to § 3583(e)(3)). Accordingly, Hergott argues that, in order to" }, { "docid": "20695809", "title": "", "text": "LYNCH, Circuit Judge. This ease concerns the reading of a federal sentencing statute, 18 U.S.C. § 3559(a), in the context of revocation of a federally supervised release imposed after a criminal contempt conviction. We conclude that the criminal contempt here must as a matter of statutory construction be treated as a Class A felony under 18 U.S.C. § 3559(a). We therefore respectfully disagree with the Ninth and Eleventh Circuits. Christopher Wright appeals from an order that revoked his supervised release on underlying convictions of being a felon in possession of a firearm and criminal contempt, and imposed a sentence of thirty months of imprisonment. The district court found, inter alia, that Wright violated the terms of his release by breaking state law. In sentencing, the court classified criminal contempt as a Class A felony, which carries a maximum five-year (sixty-month) term of imprisonment. See 18 U.S.C. § 3583(e)(3). Wright received a sentence of thirty months of imprisonment. Wright raises two issues: first, he challenges the court’s determination that he violated state law and, second, he argues that his maximum imprisonment exposure was two years, on the theory that criminal contempt is a Class C felony under 18 U.S.C. § 3559(a). We affirm the decision and sentence. I. On review of an appeal of revocation of supervised release, “we consider the evidence in the light most favorable to the government,” and “we recognize the district court’s broad legal power to determine witness credibility.”, See United States v. Portalla, 985 F.2d 621, 622 (1st Cir.1993). In 2007, Christopher Wright pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and criminal contempt, ,18 U.S.C. § 401(3), and was sentenced to concurrent terms of eighty months of imprisonment on each offense; three and five years of supervised release on the charges, respectively, to be served concurrently; and a $200 fine. One condition of his release was that he “not commit another federal, state, or local crime.” Another was that he not use a controlled substance. In 2012, only a few months after his supervised release started," }, { "docid": "20695816", "title": "", "text": "of the vehicle was certainly “in a manner capable of producing death or serious bodily injury.” Pierre, 649 A.2d at 334. Wright has not even attempted to explain how the facts could otherwise be viewed. There was no error in the district court’s determination that Wright violated the term of his release proscribing a violation of state law. B. Classification of Criminal Contempt As a result of his violations of supervised release, Wright was sentenced to thirty months of imprisonment. Wright contends that his underlying conviction for criminal contempt should be classified as a Class C felony, not a Class A felony, and that he was incorrectly exposed to a maximum prison term of five years. In fact, he was sentenced to less than that maximum prison term. His argument is that, nonetheless, his maximum exposure was to no more than two years, and his actual sentence of thirty months, or two and a half years, was more than that. In revocation sentencing, after considering the applicable 18 U.S.C. § 3553(a) factors, the court may revoke a term of supervised release and “require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release.” 18 U.S.C. § 3583(e)(3). However, maximum imprisonment exposure is limited as follows: [A] defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than one year in any other case. Id. Crimes are classified for purposes of § 3583 pursuant to 18 U.S.C. § 3559(a): An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is— (1) life imprisonment, or if" }, { "docid": "20695814", "title": "", "text": "though our review of legal questions is plenary, United States v. O’Neil, 11 F.3d 292, 294 (1st Cir.1993). A. Aggravated Assault under Maine Law Under 18 U.S.C. § 3583(e)(3), a court may revoke a term of supervised release if the court “finds by a preponderance of the evidence that the defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). Wright challenges the court’s finding that he violated the term of his release that prohibits commission of a state crime. He argues that he did not commit aggravated assault under Maine law. We agree with the district court that Wright’s conduct during the July 20, 2014, incident constituted aggravated assault under § 208(1)(B), the “use of a dangerous weapon” prong of the Maine statute. See Me.Rev.Stat. Ann. tit. 17-A, § 208(1) (2014). As a result, we need not reach whether his conduct also qualifies under the “extreme indifference” prong, id. § 208(1)(C). Under applicable Maine law, criminal liability for aggravated assault attaches when a person “recklessly” causes bodily injury with “a dangerous weapon.” Id. § 208(1)(B). Maine courts have recognized that a vehicle can qualify as a dan gerous weapon if the vehicle is “used ... in a manner capable of producing death or serious bodily injury.” State v. Pierre, 649 A.2d 333, 334 (Me.1994); see State v. York, 899 A.2d 780, 783 (Me.2006); Pierre, 649 A.2d at 334-35 & 334 n. 3 (discussing Me.Rev.Stat. Ann. tit. 17-A, § 2(9)(A), defining “use of a dangerous weapon”). Wright asserts that “the circumstances in this case do not allow finding that the truck was used as a dangerous weapon,” as “[n]ot every instance of driving away causes the motor vehicle to be defined as a weapon under Maine law.” Even were that so in other situations, it is not true here. Here, Wright grabbed a man through the passenger-side window of a vehicle and instructed the driver to “go, go, go,” leaving the man dangling as the vehicle sped forward, before the man was released and run over by the vehicle. While the victim, Trayes, survived without life-threatening injuries, Wright’s use" }, { "docid": "21512387", "title": "", "text": "guilty in classifying his supervised release violation under the sentencing guidelines.” Ceballos-Santa Cruz, 756 F.3d at 637. In its decision to revoke a term of supervised release and impose a sentence of imprisonment, the district court is to consider the factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). 18 U.S.C. § 3583(e). With respect to the district court’s consideration of the sentencing factors, “[a] district court need not mechanically list every § 3553(a) consideration when sentencing a defendant upon revocation of supervised release.” U.S. v. White Face, 383 F.3d 733, 740 (8th Cir. 2004). If it is evident the district court was aware of the relevant factors in imposing the sentence, we may affirm the sentence without specific findings on each factor. United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir. 2008). At the revocation hearing, the district court reviewed the past sentences of imprisonment and terms of supervised release imposed upon Johnson, then commented on the sentences’ relative ineffectiveness in changing his behavior. The district 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" }, { "docid": "22116783", "title": "", "text": "four-part plain-error standard, we need not resolve this issue here. B. The “Statement of Reasons” Under 18 U.S.C. § 3583(e), a sentencing court “may, after considering” a variety of factors set forth in § 3553(a) — including any relevant policy statements issued by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(a)(3), see 18 U.S.C. § 3553(a)(4)(B) — revoke a defendant’s term of supervised release and require the defendant to serve a term of imprisonment, if the court first determines that the defendant violated the terms of his or her supervised release. A court must revoke a defendant’s supervised release in some circumstances, including when the defendant possesses a controlled substance or tests positive for an illegal controlled substance more than three times over the course of a year. See 18 U.S.C. § 3583(g). Pursuant to 18 U.S.C. § 3583(d), however, a court may “carve out an exception to § 3583(g) where a substance abuse program is available and appropriate.” Wirth, 250 F.3d at 170. If a court revokes a defendant’s term of supervised release under either 18 U.S.C. §§ 3583(e) or (g), the court may not impose a term of imprisonment greater than five years if the underlying offense that led to the supervised release term was a Class A felony. By comparison, the maximum is three years for a Class B felony, two years for a Class C or D felony, and one year in all other cases. See 18 U.S.C. §§ 3583(e)(3), 3583(g). And, pursuant to 28 U.S.C. § 994(a)(3), the Sentencing Commission has issued policy statements about the revocation of supervised release that classify violations, see U.S.S.G. § 7B1.1, and recommend corresponding terms of imprisonment, see U.S.S.G. § 7B1.4; see also Fleming, 397 F.3d at 98. For a defendant such as Lewis, who committed a Class A felony and then a Grade C supervised release violation and had a criminal history category of I, the recommended imprisonment range is three to nine months, with a statutory maximum of five years. See U.S.S.G. § 7B1.4 (table); 18 U.S.C. § 3583(e)(3). And, [although a district court," }, { "docid": "9423642", "title": "", "text": "TORRUELLA, Circuit Judge. Jessie Butler-Acevedo (“Butler”) appeals from two concurrent five-year sentences following the revocation of supervised release, pursuant to 18 U.S.C. § 3583(e). Butler argues that the district court committed procedural error in imposing the statutory maximum sentences available. For the reasons stated below, we affirm. I. Background Butler pleaded guilty in 2000 to two drug-related conspiracies. At the sentencing following the guilty plea, the district court imposed two concurrent ten-year sentences with subsequent five-year terms of supervised release, also to be served concurrently. In 2008, Butler was released from custody and began his supervised release. The supervised release was not successful. Approximately fourteen months after Butler’s release, the U.S. Probation Office (“USPO”) filed a motion notifying the court of four violations; a later filing supplemented the initial motion, reporting six additional violations. At his revocation hearing, Butler admitted to these ten violations, which ranged in severity from failing to obtain lawful employment to associating with individuals engaged in the trafficking of narcotics. Although the recommended sentence under the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) was three to nine months of incarceration, the court ultimately sentenced Butler to sixty months in each case, which was the statutory maximum sentence available because the underlying offenses were Class A felonies. See 18 U.S.C. § 3583(e)(3). Butler now appeals these sentences. II. Discussion Butler argues that his sentencing was procedurally flawed because the district court failed to consider the factors set out in 18 U.S.C. § 3553(a) that it was required to consider under 18 U.S.C. § 3583(e). He also contends that the sentence should be vacated because the district court was not clear about what sentence it was imposing. We address each argument in turn after providing the relevant legal background. A. Standard of Review “We review revocation sentences for abuse of discretion.” United States v. McInnis, 429 F.3d 1, 4 (1st Cir.2005). In doing so, we examine “both the procedural and the substantive propriety of a challenged sentence.” United States v. Santiago-Rivera, 594 F.3d 82, 84 (1st Cir.2010). B. Legal Framework for Revocation A court may revoke a defendant’s supervised release" }, { "docid": "20695812", "title": "", "text": "was in motion, Wright released Trayes, whose leg was then run over by the vehicle. Trayes was later taken to the hospital for medical care, including for a wound to his ankle, road-rash, internal bleeding, and a sprained or broken wrist. As a result of this incident, Wright was arrested on September 11, 2014, and charged with aggravated assault under Maine law. Maine defines aggravated assault, in relevant part, as follows: 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: A. Serious bodily injury to another; or B. Bodily injury to another with use of a dangerous weapon; or C. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life. Me.Rev.Stat. Ann. tit. 17-A, § 208 (2014). After Wright’s arrest, the government filed petitions to revoke his supervised release on two grounds: use of narcotics and violation of state law. Wright challenged only the latter charge. At the ensuing proceedings, Trayes and Fay testified, and afterward the parties submitted additional briefing. On December 16, 2014, the court heard additional arguments and then ordered revocation, finding that Wright had violated two prongs of the Maine aggravated assault statute, as he “recklessly used a dangerous weapon, [Corsaro’s] car,” and manifested “extreme indifference to human life.” Turning to sentencing, the court found that Wright’s underlying criminal contempt conviction was a Class A felony under 18 U.S.C. § 3559(a), which carries a maximum revocation imprisonment sentence of five years, according to 18 U.S.C. § 3583(e)(3). The court considered the relevant sentencing factors and then sentenced Wright to below the five-year maximum, sentencing him to thirty months of imprisonment. This appeal followed. II. We review the district court’s ultimate decision to revoke supervised release for abuse of discretion, and the underlying finding of a violation of supervised release for clear error. United States v. Oquendo-Rivera, 586 F.3d 63, 66-67 (1st Cir.2009); United States v. Whalen, 82 F.3d 528, 532 (1st Cir.1996). We review the revocation sentence the court imposes for abuse of discretion, see United States v. Butler-Acevedo, 656 F.3d 97, 99 (1st Cir.2011)," }, { "docid": "22395368", "title": "", "text": "him to move out of its path. The testimony, which the district court implicitly found to be credible, sufficiently established a violation of section 565.082.1, and thus the district court did not clearly err in its determination that Perkins had violated a mandatory condition of his release. See Missouri v. St. George, 215 S.W.3d 341 (Mo.Ct.App.2007) (driving directly toward a law enforcement officer and forcing him to move may be considered second-degree assault of an officer in violation of section 565.082); Missouri v. Brown, 989 S.W.2d 652, 653 (Mo.Ct.App.1999) (same). Furthermore, Perkins conceded that he had violated a special condition of his release. The district court did not abuse its discretion by revoking Perkins’s supervised release after it determined that he had committed Grade B and Grade C supervised release violations by assaulting an officer and absconding from his substance abuse program. See Carothers, 337 F.3d at 1019; U.S.S.G. § 7B1.3(a)(1) (policy statement calling for the revocation of supervised release upon a finding of a Grade A or B supervised release violation as defined in U.S.S.G. § 7B1.1(a)). B. Sentence A district court’s discretion to impose a prison sentence upon revocation of supervised release is limited by statute. 18 U.S.C. § 3583(e)(3). If the sentence imposed is within the bounds of § 3583(e)(3), we will not disturb it absent an abuse of discretion. United States v. Walker, 513 F.3d 891, 893 (8th Cir.2008). Section 3583(e)(3) imposes two limitations on the term for a sentence resulting from the revocation of supervised release, and both are based on the “offense that resulted in the term of supervised release” (original offense). First, the revocation sentence may not exceed “the term of supervised release authorized by statute for the [original offense] without credit for time previously served on postrelease supervision,” and second, it may not exceed the absolute maximum revocation sentence provided in § 3583(e)(3) with respect to the class of the original offense. § 3583(e)(3). The district court correctly determined that the statutory maximum for Perkins’s original offense, felon in possession of a firearm, a class C felony, was two years. See §" }, { "docid": "20695811", "title": "", "text": "Wright was arrested for theft; he admitted to violating the terms of his release and was sentenced to twelve months and a day of imprisonment, with twenty-three months of supervised release for the firearms conviction and twenty-four months for the criminal contempt conviction. Once out on release for a second time, Wright used drugs and engaged in conduct leading to his arrest. On July 20, 2014, Wright contacted Jonathan Trayes to pay for hallucinogenic mushrooms. Later that day, Justin Corsaro drove Wright in Corsaro’s pickup truck to Trayes’s bouse where several people, including Trayes’s acquaintance, Harry Fay, were present. Fay testified that he watched from his truck as Trayes approached the passenger side of Corsaro’s vehicle and began speaking with Wright. After a brief conversation, Wright grabbed Trayes by the arm through the window and told the driver to “go, go, go.” Fay and Trayes testified that as the vehicle accelerated forward, Wright dragged Trayes along for at least fifty feet, dangling outside the window, as Wright punched Trayes in the head. While the car was in motion, Wright released Trayes, whose leg was then run over by the vehicle. Trayes was later taken to the hospital for medical care, including for a wound to his ankle, road-rash, internal bleeding, and a sprained or broken wrist. As a result of this incident, Wright was arrested on September 11, 2014, and charged with aggravated assault under Maine law. Maine defines aggravated assault, in relevant part, as follows: 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: A. Serious bodily injury to another; or B. Bodily injury to another with use of a dangerous weapon; or C. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life. Me.Rev.Stat. Ann. tit. 17-A, § 208 (2014). After Wright’s arrest, the government filed petitions to revoke his supervised release on two grounds: use of narcotics and violation of state law. Wright challenged only the latter charge. At the ensuing proceedings, Trayes and Fay testified, and afterward the parties submitted additional briefing. On December 16," }, { "docid": "20695815", "title": "", "text": "§ 208(1)(B). Maine courts have recognized that a vehicle can qualify as a dan gerous weapon if the vehicle is “used ... in a manner capable of producing death or serious bodily injury.” State v. Pierre, 649 A.2d 333, 334 (Me.1994); see State v. York, 899 A.2d 780, 783 (Me.2006); Pierre, 649 A.2d at 334-35 & 334 n. 3 (discussing Me.Rev.Stat. Ann. tit. 17-A, § 2(9)(A), defining “use of a dangerous weapon”). Wright asserts that “the circumstances in this case do not allow finding that the truck was used as a dangerous weapon,” as “[n]ot every instance of driving away causes the motor vehicle to be defined as a weapon under Maine law.” Even were that so in other situations, it is not true here. Here, Wright grabbed a man through the passenger-side window of a vehicle and instructed the driver to “go, go, go,” leaving the man dangling as the vehicle sped forward, before the man was released and run over by the vehicle. While the victim, Trayes, survived without life-threatening injuries, Wright’s use of the vehicle was certainly “in a manner capable of producing death or serious bodily injury.” Pierre, 649 A.2d at 334. Wright has not even attempted to explain how the facts could otherwise be viewed. There was no error in the district court’s determination that Wright violated the term of his release proscribing a violation of state law. B. Classification of Criminal Contempt As a result of his violations of supervised release, Wright was sentenced to thirty months of imprisonment. Wright contends that his underlying conviction for criminal contempt should be classified as a Class C felony, not a Class A felony, and that he was incorrectly exposed to a maximum prison term of five years. In fact, he was sentenced to less than that maximum prison term. His argument is that, nonetheless, his maximum exposure was to no more than two years, and his actual sentence of thirty months, or two and a half years, was more than that. In revocation sentencing, after considering the applicable 18 U.S.C. § 3553(a) factors, the court may" }, { "docid": "19032555", "title": "", "text": "JOHN R. GIBSON, Circuit Judge. Greg Hergott was accused of violating the terms of his supervised release by committing felony assault and failing to complete a required substance abuse treatment program. Hergott admitted these violations at the revocation hearing and was sentenced to sixty months’ imprisonment. On appeal, Hergott argues that the sixty-month sentence is improper because: (1) it exceeds the applicable statutory maximum resulting in an illegal sentence; and (2) the district court erred in ordering an excessive and unwarranted sentence. We reverse and remand for resentencing. On January 27, 2003,- Greg Hergott was sentenced to 117 months’ imprisonment and five years’ supervised release after pleading guilty to narcotics and firearm charges. In response to the government’s motion for resentencing based on substantial assistance, Hergott was resentenced to a total term of thirty-six months’ imprisonment followed by five years’ supervised release. See Fed.R.Crim.P. 35(b). He was released-in June 2005 and began the supervised release portion of his sentence. In 2006, Hergott violated his supervised release and, after serving seventy-two days in custody, was sentenced to time served. In 2007, Hergott was again charged with violating the terms of his supervised release by committing felony assault and failing to complete a required substance abuse treatment program. He admitted the allegations and received the sentence at issue on this appeal. At his sentencing on the 2007 violation, the district judge revoked Hergott’s supervised release and sentenced him to sixty months’ imprisonment. Under the version of 18 U.S.C. § 3583(e)(3) in effect at the time of sentencing, sixty months was the maximum sentence allowable where the violator’s original offense was a Class A felony. This was an upward departure from the eighteen to twenty-four months recommended by the U.S. Sentencing Guidelines. Hergott objected to the sentence, arguing that the district court was required to apply the version of § 3583(e)(3) in effect at the time he committed the original offense, and therefore the sixty-month sentence must be reduced by the seventy-two days he served on the first revocation. Nonetheless, the district court entered a sentence of sixty months’ imprisonment with no supervised" }, { "docid": "19803425", "title": "", "text": "a ban on visiting San Francisco, where Broussard had gang ties. Broussard served his eighteen months and began a third round of supervised release. A few weeks later, he violated its terms by going to San Francisco, failing to report a police contact and failing to report that he’d obtained a car. Broussard pleaded guilty to the violations and the district judge revoked his supervised release. At issue is the punishment she then imposed. The supervised release statute caps the overall length of the sentence that can be imposed following revocation of supervised release but gives the district judge discretion to impose either imprisonment, supervised release or a combination of the two. 18 U.S.C. § 3583(b), (e)(3), (h). The maximum possible sentence for violating the terms of supervised release turns on the seriousness of the underlying offense. 18 U.S.C. § 3583(b). The district judge was therefore required to classify the prior convictions supporting Broussard’s prior supervised release terms — assaulting a federal officer and contempt of court— according to the scheme set out in 18 U.S.C. § 3559. Section 3559 classifies felonies by their maximum sentence, with A felonies being the most serious and E felonies being the least. For example, crimes with a maximum sentence of life imprisonment or death are Class A felonies, whereas crimes with a maximum sentence of less than five years but more than one year are Class E felonies. Id. § 3559(a). Because contempt of court has no statutory maximum, 18 U.S.C. § 401, the district judge held that Broussard’s prior contempt conviction was for a Class A felony. The total maximum sentence for revocation of supervised release following a Class A felony is five years. 18 U.S.C. § 3583(e)(3). The judge sentenced Broussard to two years in prison and three years of supervised release. One of Broussard’s conditions of supervised release was that he “refrain from the use of alcohol.” Broussard appealed the sentence, arguing that his contempt conviction should have been classified as a Class E felony, which would have capped his maximum total sentence at one year. 18 U.S.C. § 3583(b)(3)," } ]

[ { "docid": "96161", "title": "", "text": "HUTCHESON, Chief Judge. This is an appeal from a decision of the Tax Court entered March 15, 1957, and reported in 27 T.C. 306. Involving the liability of Dorothy Sullivan (hereinafter called taxpayer), resident in Texas, for deficiencies in income taxes as determined and asserted against her by the commissioner and redetermined by the Tax Court in the sums of $2,911.52 (joint and several liability with her husband) and $2,575.29, aggregating $5,486.81 for the two calendar years 1947 and 1949, respectively, it presents two questions for decision. These are: (1) Whether the Tax Court correctly held that the 1947 income tax return which was signed by the taxpayer and her husband and completed and filed by him was a joint return, and that taxpayer is jointly and severally liable for the deficiency in income tax as determined and asserted against them. (2) Whether the Tax Court properly held that the commissioner correctly determined the portion of the community income chargeable to the taxpayer wife for the taxable year 1949, the year of the divorce. While the taxpayer’s counsel argues both questions vigorously, earnestly and with an evident conviction that she has been wronged by the decision, we cannot see it that way. Indeed we think it clear that upon the facts found and for the reasons carefully set out in the Tax Court’s opinion, both questions must receive an affirmative answer. Because the Tax Court’s opinion contains a full and complete, indeed a detailed statement of all the facts, it will be sufficient for us to briefly summarize in the margin those pertinent to this appeal. Taxpayer contests the findings and conclusions as to the taxable year 1947, on the grounds: (1) that she did not willingly sign the joint return; and (2) that because the return, though signed by her before, was not filed until after, the due date, it is not binding on her. Of the first ground, we think it is sufficient to say that the question presented is one of fact and that, as the Tax Court’s correct summary of the evidence shows, there was ample" } ]

[ { "docid": "19084217", "title": "", "text": "accountant would insist upon including a \"gift” in income; nor is it plausible to imagine an attorney not questioning such advice if it had been given in the attorney’s presence. Indeed, it is hard to imagine why William had an attorney accompany him to meet with his accountant, other than due to the sensitive nature of the admissions William was making. William’s letter to the accountant after the meeting, moreover, does not give any indication of there having been any gift. Similarly, it is almost inconceivable to imagine attorney Price allowing William to sign the 12/4/85 coin inventory stating he was returning property \"of William H. Walters\" if William had previously told Price the coins were a gift. (See ¶ 39 above.) . The Tax Court and Bankruptcy Court have concurrent jurisdiction to determine tax liabilities. United States v. Wilson, 974 F.2d 514, 518 (4th Cir.1992). Pursuant to § 362(a)(8) the automatic stay precludes the commencement or continuation of a proceeding before the United States Tax Court, unless the bankruptcy court lifts the stay to allow it. Section 362(a)(6) stays the assessment of a claim that arose prior to the commencement of the case; however, pursuant to § 362(b)(9), the automatic stay does not operate as a stay of the issuance to the Debtor by governmental unit of a notice of a tax deficiency. In re Ungar, 104 B.R. 517, 520 (Bankr.N.D.Ga.1989). In addition, the stay had been dissolved by the grant of the Debtors’ discharge pursuant to § 362(c)(2)(C), because the acts of the IRS did not relate to property of the Debtors’ estate under § 362(c)(1). However, even when the stay is lifted, the Bankruptcy Court retains jurisdiction concurrent with the tax court. U.S. v. Wilson, 974 F.2d at 518, supra. . Section 6214(a) of the Internal Revenue Code (26 U.S.C.) provides that the Tax Court has jurisdiction to redetermine the correct amount of the deficiency asserted in the notice \"and to determine whether any additional amount, or addition to the tax should be assessed, if claim therefor is asserted by the Secretary at or before the hearing" }, { "docid": "3512054", "title": "", "text": "tax, fraud penalties and interest for the years 1953 and 1958 because she was an innocent wife who did not participate in any fraudulent intent to evade taxes, had no income of her own for those years, and did not file joint returns with her husband. Moreover, she contends that the effect of the Tax Court’s decision is to deprive her of property without due process of law in violation of the 5th Amendment to the Constitution of the United States. These issues are raised here for the first time and were not presented to the Tax Court for determination. Under the familiar rule, we need not decide the merits of claims or issues which the Tax Court had no opportunity to decide. Kelly v. Commissioner of Internal Revenue, 228 F.2d 512, 516 (C.A.7, 1956). We have, however, considered Ardenia’s contentions and find them groundless. This is especially true in view of the fact that the joint petition of the'Upshaws filed in the Tax Court alleges that the 1953 and 1958 returns were joint returns and the stipulation of fact entered into by all parties also says that these returns were joint. Ardenia was a party to the Tax Court proceedings and had full opportunity to litigate the question of joint returns and her husband’s fraudulent intent to evade taxes. She stipulated that the 1953 and 1958 returns were joint, and the question of her husband’s fraud was fully litigated. Therefore, her 5th Amendment rights to due process were fully accorded her. Sections 51(b) of the 1939 Code and 6013(d) (3) of the 1954 Code provide that if a joint return is made, the liability with respect to tax shall be joint and several. The courts have uniformly held that the wife is liable for all additional taxes, including penalties for fraud, when she joins in the filing of a joint return, regardless of lack of knowledge or fraudulent intent on her part. Prokop v. Commissioner of Internal Revenue, 254 F.2d 544 (C.A.7, 1958); Horn v. Commissioner of Internal Revenue, 387 F.2d 621 (C.A.5, 1967); Moore v. United States, 360" }, { "docid": "21338817", "title": "", "text": "filing these claims for refunds, the Internal Revenue Service re-examined the cattle inventories for the years 1948 through 1952. This time, by a report dated May 1, 1954, the second examining agent recommended downward adjustments in the costs and inventories. This report set the plaintiff’s cattle inventories at the following figures: Year Opening Inventory Closing Inventory 1948 $227,850.00 $328,972.04 1949 328,972.04 340,507.92 1950 340,507.92 316,350.96 1951 316,350.96 329,949.07 1952 329,949.07 135,350.56 (9-2-52) The taxpayer had reported his cattle inventories on his tax returns filed for the taxable yeai’S 1950, 1951 and 1952 as follows: Opening Closing Year Inventory Inventory 1950 $335,200.00 $348,000.00 1951 425,270.00 431,655.96 1952 431,655.96 172,488.77 (8-31-52) The report of examination dated May 1, 1954, computed plaintiff’s correct income tax liability at $110,839.43 for 1948 and $53,077.01 for 1949. On the basis of this report, the plaintiff had overpaid his income taxes for 1948 and 1949 computed as follows: 1. Payments: 1948 1949 Original return $111,354.14 $58,340.60 Assessment (1-1-52) 93,165.36 9,911.70 Total payment? $204,519.50 $68,252.30 2. Less: Correct tax liability $110,639.43 $53,077.01 Overpayment of income taxes 93,680.07 15,175.29 June 16, 1954, the Service refunded to the taxpayer with interest the amounts of $93,165.36 and $9,911.70, assessed for 1948 and 1949 and paid by the taxpayer March 31, 1952. The Service refused to refund the $514.71 for 1948 and $5,262.59 for 1949, although these were admittedly overpayments. The Commissioner allowed the refund of the payments of the deficiencies, because these were paid during the two years preceding the filing of claim for refund. August 30, 1954, the taxpayer filed claims for refunds for the overpayments of $514.71 and $5,263.59. December 30, 1957, the Commissioner mailed statutory notices to the taxpayer disallowing the claims. March 18, 1959, the taxpayer filed suit for refunds. There is no doubt that under Section 322(b) (2) (B) of the 1939 Code the claims for refunds would be prescribed. The issue is the applicability of the mitigating statutes to the facts. II. Final Determination Section 3801(a) (1) of the 1939 Code defines “determination” as follows: “(1) Determination. The term ‘determination under the income tax laws’" }, { "docid": "10458822", "title": "", "text": "of section 284, as a notice of a deficiency, and the taxpayer shall have no right to file a petition with the Board based on such notice, nor shall such assessment or collection be prohibited by the provisions of subdivision (a) of this section. In explaining this section, the Senate Finance Committee Report states: But if he does elect to file a petition with the Board his entire tax liability for the year in question (except in case of fraud) is finally and completely settled by the decision of the Board when it has become final, whether the decision is by findings of fact and opinion, or by dismissal, as in case of lack of prosecution, insufficiency of evidence to sustain the petition, or on the taxpayer’s own motion. The duty of the Commissioner to assess the deficiency thus determined is mandatory, and no matter how meritorious a claim for abatement of the assessment or for refund he can not entertain it, nor can suit be maintained against the United States or the collector. Finality is the end sought to be attained by these provisions of the bill, and the committee is convinced that to allow the reopening of the question of the tax for the year involved either by the taxpayer or by the Commissioner (save in the sole case of fraud) would be highly undesirable. S. Rept. No. 52, 69th Cong., 1st Sess. (1926), 1939-1 (Part 2) C.B. 332, 351. Section 274(e) of the Revenue Act of 1926, the predecessor of section 272(e) of the 1939 Code and section 6214(e) of the 1954 Code, provides: The Board shall have jurisdiction to redetermine the correct amount of the deficiency even if the amount so redetermined is greater than the amount of the deficiency, notice of which has been mailed to the taxpayer, and to determine whether any penalty, additional amount or addition to the tax should be assessed, if claim therefor is asserted by the Commissioner at or before the hearing or a rehearing. In explaining this section the Senate Finance Committee Report states: Under the existing law and" }, { "docid": "1452700", "title": "", "text": "SOBELOFF, Circuit Judge. This is a petition to review the decision of the Tax Court holding the petitioner liable for income tax deficiencies and fraud penalties for the years 1942-46. The year 1946 is open for deficiency assessment by the taxpayer’s waiver of limitations, but the years 1942-45 are closed by limitations, unless the taxpayer filed fraudulent returns with the intent to evade taxes in those years. Internal Revenue Code of 1939, Section 276(a), 26 U.S.C. (1952 ed.) Section 276 (a). The Tax Court found that the returns for those years were fraudulent and not closed to assessment. Deficiencies were found for all five years, and the Tax Court concluded that as part of the deficiency in each year was due to fraud, the taxpayer was liable for the 50% penalty on the entire deficiency of each year as provided by the Internal Revenue Code of 1939, Section 293(b), 26 U.S.C. (1952 ed.) Section 293(b). Part of the deficiency for 1946 had already been paid, but the Court imposed the penalty on that amount as well as on the sum still due. The amounts of deficiency and penalty found to .be owing are set out below. Year Income Tax Additions to the Tax 1942 p 2,159.56 $ 1,079.78 1943 2,145.22 1,072.61 1944 15,745.65 7.872.83 1945 16,853.67 8.426.84 1946 4,445.69 12,065.43 I. The petitioner advances the contention that because no joint returns were ever filed, and only Joseph Romm filed individual returns, the Tax Court erred in holding Joseph Romm and his wife, Helen, jointly and severally liable for the deficiencies and penalties. The deficiency notice named them as jointly and severally liable and the petition for review by the Tax Court was brought in both names, in accord with the rules, but the Commissioner conceded, in the Tax Court and here, that the husband alone is liable. Taxpayer urges that the Tax Court was without jurisdiction, or, in any event, committed reversible error in not limiting liability to the husband. The contention is unsubstantial. While the Court undoubtedly committed an inadvertent error, which must be corrected, it was not prejudicial" }, { "docid": "17336586", "title": "", "text": "KNOCH, Circuit Judge. Anthony A. Jaeger and Anna Jaeger, husband and wife, filed individual income tax returns for the calendar years 1945, 1946 and 1947, and joint income tax returns for the calendar years 1948 through 1953. Anna Jaeger is involved only because of the joint returns which she filed with her husband. Jaeger Motor Car Company (hereinafter called “Motor Company” or “J.M.C.”), a Wisconsin corporation, of which Mr. Jaeger was president and the majority stockholder, filed income tax returns for the years 1945 through 1953. These consolidated proceedings involved deficiencies and additions to tax as determined by the Commissioner of Internal Revenue. In large part the facts were stipulated. The Tax Court found that there were deficiencies in income taxes and deficiencies in additions to tax for the years 1945, 1946, 1947 and 1948. The petitioner sought review in this Court. No issue is taken respecting the deficiency assessments against Jaeger Motor Car Company or Mr. Jaeger for 1946, 1947 or 1948. It is contended, however, that deficiency assessment for 1945 is barred by the Statute of Limitations, and that findings of fraudulent returns by Mr. Jaeger in 1945,1947 and 1948, and by the Motor Company in 1945, 1946, 1947 and 1948, are erroneous and unsupported by the evidence. In his deficiency notices, the Commissioner determined unreported income by net worth computation. The notices of deficiency for 1945 taxes were mailed to Mr. Jaeger and the Motor Company on December 29,1954, and January 18,1955, respectively. No consents extending the period of assessment were filed for the calendar year 1945. The petitioners, as indicated, contended that assessment of tax deficiencies for 1945 was barred by the Statute of Limitations. The Tax Court found that the three-year limitation was inapplicable here because a portion of the deficiency for each year, 1945 through 1948, was due to fraud with intent to evade tax. Where a return is false and fraudulent, with intent to evade tax, assessment and collection of deficiency may be made at any time. Internal Revenue Code of 1939, § 276(a), 26 U.S.C.A. § 276 (a). Fraud is a question" }, { "docid": "22825033", "title": "", "text": "are identical. We have stated that “one’s total income tax liability for each taxable year constitutes a single, unified cause of action, regardless of the variety of contested issues and points that may bear on the final computation.” Finley v. United States, 612 F.2d 166, 170 (5th Cir.1980). Thus, “if a claim of liability or non-liability relating to a particular tax year is litigated, a judgment on the merits is res judicata as to any subsequent proceeding involving the same claim and the same tax year.” Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). Since all of the conditions of claim preclusion have been satisfied, that doctrine applies in this suit. Having once had the opportunity to assert defenses to her tax liability, res judicata barred Mrs. Shanbaum from asserting in the district court the innocent spouse defense to her tax liability. Id.; Smaczniak, 998 F.2d at 242. III. The Sufficiency of the Evidence The government also contends that Mrs. Shanbaum did not satisfy each element of the innocent spouse defense. We agree and find that the district court erroneously concluded that Mrs. Shanbaum had shown that she was entitled to the protection of this defense. The Internal Revenue Code allows married couples to file joint income tax returns. 26 U.S.C. § 6013(a). Couples have an incentive to file joint income tax returns each year because, by doing so, their income tax liability may be substantially lower than if they had each filed separate returns. However, one' condition of this benefit is that each spouse is generally jointly and severally liable for the full amount of tax due on their combined income. 26 U.S.C. § 6013(d)(3). Nevertheless, the potential injustices of joint and several liability have been mitigated to some extent by the enactment of the “innocent spouse” provision of the Internal Revenue Code. See 26 U.S.C. § 6013(e). Under this section of the Code, a spouse can escape from the normal rule of joint and several liability if that spouse proves that he or she meets each of the statutory prerequisites of" }, { "docid": "8383389", "title": "", "text": "Beuge, Judge: Respondent determined deficiencies in income tax and additions to tax under sections 293 (b), 291(a), and 294(d) (1) (A) of the Internal Revenue Code of 1939, for the years 1947, 1949, 1950, and 1951, as follows: Respondent also determined additions to tax under section 294(d) (2) of the Internal Revenue Code of 1939 for substantial underestimate of estimated tax for each of the years in question. At the' hearing and on brief, respondent has conceded that petitioners are not liable for the additions to tax imposed by section 294(d) (2) in view of the Supreme Court’s opinion in the case of Commissioner v. Acker, 361 U.S. 87. Petitioners Lawrence H. Sunbrock and Georgia T. Hornsby (formerly Georgia Truitt Sunbrock) were husband and wife during the year 1949 and filed a joint return for that year. In view of their subsequent divorce and the remarriage of Georgia, a separate notice of deficiency was sent to each of said petitioners and they have filed separate petitions with this Court. Georgia T. Hornsby is a party to the proceedings relating to the year 1949 only by reason of haying filed the joint return. Accordingly, Lawrence Sunbrock will hereinafter be referred to as petitioner. Respondent determined the deficiencies involved by the increase in net worth method. In the absence of fraud, or understatement of gross income under section 275(c) of the Internal Revenue Code of 1939, the years 1947 and 1949 are barred by the statute of limitations. The issues presented relate to the correctness of respondent’s determinations of the deficiencies in income tax, whether any part of the deficiencies for each of the years involved was due to fraud with intent to evade tax, whether the assessment and collection of the deficiencies for the years 1947 and 1949 are barred by the statute of limitations, and whether the additions to tax pursuant to sections 291(a) and 294(d) (1) (A) of the Internal Revenue Code of 1939 were properly asserted. The several proceedings were consolidated for trial. Some of the facts have been agreed upon or otherwise established at a pretrial hearing" }, { "docid": "21476140", "title": "", "text": "charged a deficiency in income tax due from William E. Benton in respect to the 1950 income tax return in the amount of $51,622.28, and classified the widow, main plaintiff, as a transferee of decedent. On June 11, 1957, Mrs. Floerseh paid the amount of the alleged deficiency, and on July 8, 1957, the interest thereon, maintaining at the times of payment that she denied the deficiency and stated that she was not a transferee, but was a taxpayer with a joint and several liability for the payment thereof, and that the deficiency was barred by the running of the statute of limitations. It is provided in Section 51(b) (1) of the Internal Revenue Code of 1939, Title 26 U.S.C.A., (same section) as follows: “(b) Husband and wife. “(1) In general. A husband and wife may make a single return jointly. Such a return may be made even though one of the spouses has neither gross income nor deductions. 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.” It is to be noted that the provision in that Section, making the liability for the tax covered by the return joint and several, strongly supports the plaintiffs’ contention that Mrs. Floerseh is primarily liable for the tax in question, rather than liable therefor as a transferee. Section 275(c) of the Internal Revenue Code of 1939, Title 26 U.S.C.A. (same section) provides in effect, that in the case of omission of gross income by a taxpayer in excess of 25% of the amount of gross income stated in the return, the tax may be assessed or court proceedings to collect the tax may be prosecuted at any time within 5 years after the return was filed. In this case, the tax return was filed March 15, 1951, and the assessment was not made until March 14, 1957. Section 311(b) (1) Internal Revenue Code 1939, Title 26 U.S. C.A. (same section) relative to the period of limitation in claims against transferees provides in effect" }, { "docid": "2420289", "title": "", "text": "PELL, Circuit Judge. Plaintiffs-appellants John and Margaret Vishnevsky (taxpayers) are husband and wife who filed joint federal income tax returns for the years 1965 through 1970. Having apparently audited their returns, the Internal Revenue Service issued a statutory notice of deficiency for the years 1966, 1967, 1969, and 1970. The notice was by letter of July 10, 1972, signed by W. S. Stumpf, District Director of Internal Revenue, on behalf of Johnnie M. Walters, Commissioner of Internal Revenue. As pertinent, the letter states: Dear Mr. and Mrs. Vishnevsky: In accordance with the provisions of existing Internal Revenue laws, notice is given that the determination of your income tax liability discloses deficiencies for the taxable years ended December 31, 1966, December 31, 1967, December 31, 1969 and December 31, 1970 in the amounts of $1,491.35, $1,820.51, $3,651.29 and $3,177.69 respectively, and an overassessment for the taxable year ended December 31, 1965 in the amount of $1,407.41. The attached statement shows the computation of the deficiencies and the overas-sessment. When final determination is made as to the deficiencies proposed in this letter, the overassessment will be scheduled for adjustment to the extent allowable and applied as set forth in section 6402 of the Internal Revenue Code. [Emphasis added.] In three additional paragraphs, the letter explains the procedures to be followed with reference to the deficiencies, in the event taxpayers did or did not wish to contest the Service’s determinations thereof. As was their right, taxpayers appealed the Service’s deficiency determinations to the Tax Court, where they were represented by the same experienced tax attorney who represents them here. By mutual agreement made in hopes of reaching a settlement, a February 1973 trial date in the Tax Court was postponed until February 1974. Settlement negotiations were unsuccessful, a trial was had, and the decision of the Tax Court was rendered in September 1974. The deficiencies found to be due were in total amount in excess of the over-assessment sum. Taxpayers did not appeal the Tax Court’s decision, and they do not challenge their liability thereunder here. When they sought to have their 1965" }, { "docid": "10458823", "title": "", "text": "is the end sought to be attained by these provisions of the bill, and the committee is convinced that to allow the reopening of the question of the tax for the year involved either by the taxpayer or by the Commissioner (save in the sole case of fraud) would be highly undesirable. S. Rept. No. 52, 69th Cong., 1st Sess. (1926), 1939-1 (Part 2) C.B. 332, 351. Section 274(e) of the Revenue Act of 1926, the predecessor of section 272(e) of the 1939 Code and section 6214(e) of the 1954 Code, provides: The Board shall have jurisdiction to redetermine the correct amount of the deficiency even if the amount so redetermined is greater than the amount of the deficiency, notice of which has been mailed to the taxpayer, and to determine whether any penalty, additional amount or addition to the tax should be assessed, if claim therefor is asserted by the Commissioner at or before the hearing or a rehearing. In explaining this section the Senate Finance Committee Report states: Under the existing law and the House bill the 5 per cent and 50 per cent additions to the tax in case of negligence or fraud are to be assessed and collected in the same manner as if they were a deficiency, i.e., can only be assessed after the taxpayer has been sent a notice by registered mail. It sometimes occurs that after the deficiency letter has been sent out fraud or negligence is for the first time discovered by the Commissioner. In order to avoid the necessity of sending out a second notice to the taxpayer in such cases and other similar cases, it is provided in section 274(e) that the Board shall have jurisdiction upon the appeal from the original deficiency letter to determine whether any penalty, additional amount, or addition to the tax should be assessed, whether or not the Commissioner has asserted such claim in the deficiency letter or in his pleadings. If the fraud is discovered after the Board’s decision, the Commissioner can send notice thereof, on which the taxpayer can appeal to the Board." }, { "docid": "10991593", "title": "", "text": "a deficiency against him for each year was due to fraud with intent to evade tax. The relief granted in the Current Tax Payment Act of 1943 does not extend to a taxpayer to whom additions to the tax for the taxable year are applicable by reason of fraud. See section 6, Current Tax Payment Act of 1943. It follows that the Commissioner did not err in determining deficiencies and penalties for 1942. Otherwise, the petitioners do not contest the deficiencies. A jurisdictional question arises in each of these cases of which the Eck case will serve as an example. The question is whether the Tax Court has any jurisdiction based upon a statutory notice in which the Commissioner does not determine a deficiency in tax for 1943 but merely gives notice to the taxpayer of his determination that the latter is liable for the 50 per cent addition to the deficiency by reason of the application of section 293 (b). Eck filed an original return for 1943 showing tax due in the amount of $3,467.89. A tax of $15,907.91 was imposed on his income for that year by Chapter 1 with the result that a $12,440.02 deficiency, as defined in section 271 (a) of the Internal Revenue Code, existed after the filing of that return. Eck later filed an amended return showing additional tax due in the amount of $14,587.32. He paid that amount which was $2,147.30 in excess of the deficiency. The Commissioner, in the notice upon which the present proceeding is based, determined for 1943 an overassesstfrent of $2,147.30 and a penalty under section 293 (b) in the amount of $6,220.01, or 50 per cent of the deficiency mentioned above. Section 293 provides that if any part “of any deficiency” is due to fraud, then 50 per cent of the total deficiency is to be assessed and collected. There -was a deficiency against Eck for 1943 in the total amount of $12,440.02 to which section 293 (b) applies, and the Commissioner had a right to determine that penalty even though the deficiency was later collected through a" }, { "docid": "8383390", "title": "", "text": "to the proceedings relating to the year 1949 only by reason of haying filed the joint return. Accordingly, Lawrence Sunbrock will hereinafter be referred to as petitioner. Respondent determined the deficiencies involved by the increase in net worth method. In the absence of fraud, or understatement of gross income under section 275(c) of the Internal Revenue Code of 1939, the years 1947 and 1949 are barred by the statute of limitations. The issues presented relate to the correctness of respondent’s determinations of the deficiencies in income tax, whether any part of the deficiencies for each of the years involved was due to fraud with intent to evade tax, whether the assessment and collection of the deficiencies for the years 1947 and 1949 are barred by the statute of limitations, and whether the additions to tax pursuant to sections 291(a) and 294(d) (1) (A) of the Internal Revenue Code of 1939 were properly asserted. The several proceedings were consolidated for trial. Some of the facts have been agreed upon or otherwise established at a pretrial hearing under Rules 28(c) and 31(5) (5) of the Tax Court, Rules of Practice. Certain minor concessions have been made by respondent which will require a recomputation of the deficiencies and additions to tax under Rule 50. FINDINGS OP PACT The stipulated facts are incorporated herein by this reference. Petitioner resides at Orlando, Fla. His returns for the years 1949, 1950, and 1951 were filed with the collector of internal revenue for the district of Florida. His 1947 return was filed with the collector of internal revenue for the district of Ohio. For a number of years, including the taxable years here involved, petitioner has 'been engaged in producing rodeos, circuses, and other shows of that type for public entertainment in various places throughout the United States and, for a short while in 1948, in Europe. Petitioner married Georgia Truitt in April 1949 and she worked with petitioner in the conduct of his business and handling the concessions at his various shows until they were divorced in May 1952. Petitioner sometimes conducted his business under firm" }, { "docid": "5263617", "title": "", "text": "taxpayers had made a return and an election of joint filing status. Mundy, moreover, is more remarkable for its absence of principle than its revelation of equities. As here, the taxpayer had failed to file income tax returns for several fiscal years; the Commissioner determined deficiencies for those years and sought to collect tax computed at an individual rate though the taxpayer was married. When the taxpayer complained, the Tax Court upheld the Commissioner by this reasoning: In the case of a husband and wife living together the income of each (even though one has no gross income) may be included in a single return made by them jointly, in which case the tax shall be computed on the aggregate income, and the liability with respect to the tax shall be joint and several. No joint return may be made if either the husband or wife is a nonresident alien. Under section 51(b)(1), Internal Revenue Code of 1939, a husband and wife may elect to make a “single return jointly.” That election must be exercised by the taxpayers at the time the return is filed. Therefore, as Joseph A. Mundy filed no income tax returns for these years the split income provisions were never elected by him. 14 T.C.M. at 1072. Whatever the validity of this statutory interpretation under the Internal Revenue Code of 1939, Congress has since deprived it of force by passing subsection 6013(b). It is no longer true that an election to file jointly “must be exercised by taxpayers at the time the return is filed,” and I turn to Grobart in search of the equitable considerations to which Spanos made reference. The taxpayer in Grobart received in February of 1957 a notice of deficiency from the Commissioner, which computed tax for a number of preceding fiscal years on the basis of individual tax rates. Over two years later, after the taxpayer had gone so far as to have his case docketed in the Tax Court, he and his wife filed joint returns for the years in question. The Tax Court held that the couple was bound" }, { "docid": "4223520", "title": "", "text": "and collection of the taxes now claimed are barred. Rule 50 of the Tax Court, 26 U.S.C.A. § 7453, provides in part as follows: “If the parties are in agreement as to the amount of the deficiency or overpayment to be entered as the decision pursuant to the report of the Court, they or either of them shall file promptly with the Court an original and two copies of a computation showing the amount of the deficiency or overpayment and that there is no disagreement that the figures shown are in accordance with the report of the Court. The Court will then enter its decision.” The Tax Court had complete jurisdiction, not merely to determine the deficiencies claimed in the petition filed with it, but also of the entire income tax liability of the taxpayer for the particular taxable years in question. Peerless Woolen Mills v. Rose, Collector of Internal Revenue, 5 Cir., 28 F.2d 661. The Internal Revenue Code of 1939, 26 U.S.C.A. provides: “§ 272(e) Increase of deficiency after notice mailed. “The Tax Court shall have jurisdiction to redetermine the correct amount of the deficiency even if the amount so redetermined is greater than the amount of the deficiency, notice of which has been mailed to the taxpayer, and to determine whether any penalty, additional amount or addition to the tax should be assessed — if claim therefor is as- serted by the Commissioner at or before the hearing or a rehearing.” “§• 272(b) Collection of deficiency founciby Tax Court. “If the taxpayer files a petition with .the Tax Court, the entire amount redetermined as the deficiency by the decision of the Tax Court which has become final shall be.assessed and shall be paid upon notice and demand from the collector.. No párt of the amount determined as a deficiency by the Commissioner but, disallowed as such by the decision of the Tax Court which has become final shall be assessed or be collect- ■ ed by distraint or by proceeding in court with or without assessment.” , After the decisiomin the Tax Court became final the Commissioner" }, { "docid": "22743132", "title": "", "text": "is: “ Did the payment by the employer of the income taxes assessable against the employee constitute additional taxable income to such employee?” The first point presented to us is that of the jurisdiction of this Court to answer the question of law certified. It requires us to examine the original statute providing for the Board of Tax Appeals under the Revenue Aét of 1924, and the amending Act, of 1926. j The Board of Tax Appeals, established by § ¿00 of the Revenue Act of 1924, Tit. IX, c. 234, 43 Stat. 253, 336, was created by Congress to provide taxpayers an opportunity to secure an independent review of the Commissioner of Internal Revenue’s determination of additional income and estate taxes by the Board in advance of their paying the tax found by the Commissioner to be due. Before the Act of 1924 the taxpayer could only contest the Commissioner’s determination of the amount of the tax after its payment. The Board’s duty under the Act of 1924 was to hear, consider and decide whether deficiencies reported by the Commissioner were right. Section 273 of that Act defined a “ deficiency ” to be .the amount by which the tax imposed exceeded the amount shown by the return of the taxpayer after the return was increased by the amounts previously assessed or disallowed. There was under the Act of 1924 no direct judicial review of the proceedings before the Board of Tax Appeals. But each party had the unhindered right to seek separate action by a court of competent jurisdiction to test the correctness of the Board’s action. Such, court proceedings were to be begun within one year after the final decision of the Board. Section 274 (b) provided that if the Board determined there was a deficiency, the amount so determined should be assessed and paid upon notice and demand from the collector. No part of the amount determined as a deficiency by the Commissioner but disallowed as a deficiency by the Board, could be assessed, but the Commissioner was at liberty, notwithstanding the decision of the Board" }, { "docid": "4223519", "title": "", "text": "* * There is no provision therein for paying any taxes in addition to the deficiencies therein set forth. There is no statement therein that the settlement was based on the original or the amended income tax return. If the Commissioner desired at the time to include the taxes in question in the settlement, he should have done so in order that the taxpayer would have the opportunity to approve or reject the settlement. Mr. Strange testified that ordinarily such a tax claim would be set forth in the stipulation. The Court finds that the parties entered into a settlement with respect to the income tax liability of the taxpayer for the years in question on the basis of the deficiencies set forth in the stipulation; that said stipulation was entered as a decision by the Tax Court and the taxpayer has paid the same in full; that the settlement agreement has been fully performed by both parties; that by reason of the settlement agreement and the decision of the Tax Court therein, the assessment and collection of the taxes now claimed are barred. Rule 50 of the Tax Court, 26 U.S.C.A. § 7453, provides in part as follows: “If the parties are in agreement as to the amount of the deficiency or overpayment to be entered as the decision pursuant to the report of the Court, they or either of them shall file promptly with the Court an original and two copies of a computation showing the amount of the deficiency or overpayment and that there is no disagreement that the figures shown are in accordance with the report of the Court. The Court will then enter its decision.” The Tax Court had complete jurisdiction, not merely to determine the deficiencies claimed in the petition filed with it, but also of the entire income tax liability of the taxpayer for the particular taxable years in question. Peerless Woolen Mills v. Rose, Collector of Internal Revenue, 5 Cir., 28 F.2d 661. The Internal Revenue Code of 1939, 26 U.S.C.A. provides: “§ 272(e) Increase of deficiency after notice mailed. “The Tax" }, { "docid": "4764819", "title": "", "text": "of the community property which she had claimed. Property standing in the name of or possessed by either party was designated as that party’s separate property. Certain items were specifically mentioned as being the separate property of one or the other. Definite statements whereby each party waived all claim to past, present, and future property of the other were included. There appears also the assertion that “the certain separation agreement heretofore executed by the parties hereto be, and the same is, supplanted by these presents.” The “Property Settlement Agreement” was approved in an interlocutory decree of divorce granted taxpayer on October 10, 1942. For each of the years 1936, 1937, 1938, and 1939 taxpayer treated his income as community property and filed one income tax return in his own name and one in his wife’s name. Each of his returns indicates that the same amount of gross income as that reported by him was also reported on a separate return filed on behalf of his wife. She was not aware of the filing of returns in her name, nor did she know the amounts of her husband’s income. Additional taxes for all four years were assessed against taxpayer by the Commissioner of Internal Revenue on the ground that taxpayer’s earnings were his separate property. With respect to the years 1936 and 1937 the assessments were made more than three but less than five years after the returns were filed. Under the law of California a husband’s earnings are community property, Civil Code Calif. §§ 161a, 164, one-half of which each spouse may report in separate income tax returns. United States v. Malcolm, 282 U.S. 792, 51 S.Ct. 184, 75 L.Ed. 714. The status of the property is the same although -husband and wife are living apart and although she has never lived in California, Commissioner of Internal Revenue v. Cavanagh, 9 Cir., 1942, 125 F.2d 366. However, California law, Civil Code Calif. §§ 158, 159, permits a husband and wife by their contract to change the character of property thereafter acquired from community to separate, and such an agreement has" }, { "docid": "2186177", "title": "", "text": "of the 1946 return, but more than three years after the filing of the 1945 return. It is petitioner’s contention that this assessment for 1946 is barred by the statutory provision requiring that the amount of the income tax “shall be assessed within three years after the return was filed,” § 275(a) of the Internal Revenue Code of 1939, 26 U.S.C. § 275(a), because it is based upon an adjusted computation of income for the barred year 1945. But here there was no actual assessment of tax deficiency for 1945; nor under the facts presented could there have been such a deficiency. We are clear that the limitation statute, in prohibiting reassessment within three years after the filing of the return, refers to the return in question, i. e., the 1946 return, not the 1945 return. This conclusion is buttressed by § 272(g) of the Internal Revenue Code of 1939, 26 U.S.C. § 272(g), giving the Tax Court jurisdiction to consider facts relating to taxes of other taxable years in order correctly to determine the amount of taxes for the years in question, but not to determine whether the tax for any other taxable year has been overpaid or underpaid. This is in line with the general theory of income taxation to treat each separate year as a unit to itself, as we are again holding in Norda Essential Oil & Chemical Co., Inc., v. United States, 2 Cir., 230 F.2d 764; and see also Rosenthal v. C. I. R., 2 Cir., 205 F.2d 505. The recent case of C. I. R. v. Van Bergh, 2 Cir., 209 F.2d 23, is directly in point. This involved a suit for a refund of an overpayment of tax for the year 1945 based upon the application of a net operating loss incurred in 1946, which the taxpayer elected to carry back to the year in question. Although the three-year statute of limitations on assessment of deficiency for 1945 had run, the Commissioner was permitted to recompute the taxpayer’s tax liability for 1945 as a means of creating a setoff against the claim" }, { "docid": "4223521", "title": "", "text": "Court shall have jurisdiction to redetermine the correct amount of the deficiency even if the amount so redetermined is greater than the amount of the deficiency, notice of which has been mailed to the taxpayer, and to determine whether any penalty, additional amount or addition to the tax should be assessed — if claim therefor is as- serted by the Commissioner at or before the hearing or a rehearing.” “§• 272(b) Collection of deficiency founciby Tax Court. “If the taxpayer files a petition with .the Tax Court, the entire amount redetermined as the deficiency by the decision of the Tax Court which has become final shall be.assessed and shall be paid upon notice and demand from the collector.. No párt of the amount determined as a deficiency by the Commissioner but, disallowed as such by the decision of the Tax Court which has become final shall be assessed or be collect- ■ ed by distraint or by proceeding in court with or without assessment.” , After the decisiomin the Tax Court became final the Commissioner did assess the deficiency and it was paid in full upon notice and demand. “§ 271. Definition of deficiency “(a) In general. As used in this chapter in respect of a tax imposed by this chapter, ‘deficiency’ means the amount by which the tax imposed by this chapter exceeds the excess of— “(1) the sum of (A) the amount • shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus (B) the amounts previously assessed (or collected without assessment) as a deficien'cy, over— “(2) the amount of rebates, as defined in subsection (b) (2), made.” Section 1140 Internal Revenue Code of 1939, Title 26 provides that the decision of the Tax Court becomes final upon expiration of time allowed for filing a petition for review. Regardless of whether the taxes now claimed are labeled “deficiencies” or just plain, ordinary income taxes or whether based on the original or amended returns, they should have been" } ]

[ { "docid": "1673436", "title": "", "text": "no irreparable injury and preliminary injunctive relief is normally not appropriate. See Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Anderson v. United States, 612 F.2d 1112 (9th Cir. 1979). However, this is not the normal case. First, in Berg, supra, the Ninth Circuit noted that “the existence of irreparable injury may in appropriate circumstances be presumed, for the purposes of preliminary injunctive relief, from the district court’s preliminary determination that Title VII has been violated.” 528 F.2d at 1212 n.6 (citing Culpepper v. Reynolds Metal Co., 421 F.2d 888, 894-95 (5th Cir. 1970)). As set out in the preceding section, the Court is persuaded that Petitioner has made a sufficiently strong showing of likely success on the merits for the Court to make a preliminary determination that Title VII has been violated. Indeed, the injury to Petitioner here is probably just “of the sort which the Act seeks to avoid .... ” 528 F.2d at 1211. Moreover, it has often been held that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976); see, e. g, McCormick v. Hirsch, 460 F.Supp. 1337, 1349 (M.D.Pa.1978) (irreparable injury found and injunction granted where substantial showing that First Amendment religious freedom rights would be infringed); 11 C. Wright & A. Miller, Federal Practice & Procedure § 2948, at 440 & n.39 (1973 & Supp.1980). The application of this principle to the present case requires an investigation of Petitioner’s claim that her dismissal violates her First Amendment right to free exercise of religion. We begin with the proposition that “only those [governmental] interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972); see Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The government argues that since it is well established that there is no First Amendment right" } ]

[ { "docid": "14406593", "title": "", "text": "requirement that would meet constitutional requirements, as dictated in prior decisions. III. Irreparable Harm Defendants first assert that Plaintiffs have not proven irreparable harm because they have not established a likelihood of success on their Constitutional claims. Defendants also argue that regardless of Plaintiffs’ success on their Constitutional claims, a deprivation of Constitutional rights is insufficient to establish irreparable harm for purposes of a preliminary injunction. Plaintiffs argue that a Constitutional violation is a per se basis for this Court to find irreparable injury. Additionally, Plaintiffs argue that they have a strong likelihood of success on the merits of their case, and therefore must only show a possibility of irreparable injury. Plaintiffs assert that either taken together or separately, these two propositions of law entitle them to a finding of irreparable harm sufficient to justify a preliminary injunction. “When a plaintiffs fundamental constitutional rights are being infringed upon, one can assume that irreparable injury exists.” Nehring, 443 F.Supp. at 228; see also Mitchell v. Cuomo, 748 F.2d 804, 806 (2nd Cir.1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”); Huston v. Burpo, C94-20771, 1995 WL 73097, at *5 (N.D.Cal. Feb. 13, 1995) (“a violation of a constitutional right would constitute an irreparable injury.”); Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (in the context of free speech, the Supreme Court held that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). In addition, where a plaintiff has established a likelihood of success on the merits, he or she need only establish the possibility of irreparable injury. Warsoldier, 418 F.3d at 993-94. Here, as set forth above, this Court found that the Hawaii residency requirement very likely violates Plaintiffs’ fundamental constitutional right to interstate migration. Thus, it can be presumed that irreparable injury is extremely likely. Even if this Court does not follow Mitchell in assuming that a constitutional violation automatically creates irreparable injury, as this Court found that Plaintiffs have a strong likelihood" }, { "docid": "7846582", "title": "", "text": "psychological injuries faced by a plaintiff who is discriminated against due to AIDS and the clear necessity for expedited relief due to the nature of that illness are simply not present in this case. I have considered the plaintiffs injuries, and I find that they do not constitute irreparable harm for the purposes of his motion for a preliminary injunction. His injuries may be adequately addressed following the trial. The plaintiffs second argument asserts that when a deprivation of constitutional rights can be shown, no further showing of irreparable injury is required. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Since such injury was both threatened and occurring at the time of respondents’ motion and since respondents sufficiently demonstrated a probability of success on the merits, the Court of Appeals might properly have held that the District Court abused its discretion in denying preliminary injunctive relief. Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). See also Saint v. Nebraska School Activities Association, 684 F.Supp. 626, 628 (D.Neb.1988); Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861, 867 (8th Cir.1977). The plaintiff argues that his termination from the faculty at UNMC constitutes ongoing retaliation for exercising his First Amendment rights, and that the plaintiffs termination chills his and the entire UNMC faculty’s willingness to exercise their rights in the future. On the one hand, the defendants point out that generally speaking, preliminary injunctions are only issued in employment cases in “genuinely extraordinary situation[s].” Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 300 (8th Cir.1996) (quoting Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)). On the other hand, under Elrod and in the Eighth Circuit, a deprivation of constitutional rights generally constitutes irreparable injury- I find that the plaintiff is correct that ongoing retaliation against the exercise of First Amendment rights can create a chilling of those rights that constitutes an irreparable injury, but in the Eighth Circuit one must do more than simply allege that such a" }, { "docid": "12478856", "title": "", "text": "the NSAA Board of Control. The Board of Control upheld the decision of the Executive Director and stated that the following factors were considered in reaching this decision: the safety of the athlete; weight loss concerns; and the fact that Stephani has had no previous competitive wrestling experience, thus raising the potential for an unsafe situation. Ms. Saint then sought relief in this Court claiming that the acts of the defendants violate the equal protection clause of the Fourteenth Amendment to the United States Constitution and the Civil Rights Act, 42 U.S.C. § 1983, and has requested that the defendants be restrained from refusing to permit her to wrestle on the St. Joseph boys’ wrestling team. A hearing was held on the issuance of the restraining order on January 27, 1988. Evidence has been submitted and the Court has heard the oral arguments of the parties. After careful consideration of this matter, this Court has decided to grant a temporary restraining order restraining the defendants from refusing to allow Ms. Saint to wrestle on the boys’ team. In making the determination whether preliminary relief should be granted, the Court must consider the following factors: the threat of irreparable harm to the mov-ant; the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; the probability that movant will succeed on the merits; and the public interest. Dataphase Systems, Inc. v. C.L. Systems, 640 F.2d 109, 113 (8th Cir.1981). IRREPARABLE INJURY The plaintiff claims that she will suffer irreparable injury if she is not permitted to wrestle with the team. Specifically, she claims that for every day she is not a member of the wrestling team, she is harmed. Further, she claims that this harm is of the type that cannot be remedied for the time lost to develop her athletic skills in this sport is irretrievable. However true plaintiffs claim may be, when an alleged deprivation of constitutional rights is involved, no further showing of irreparable injury is necessary. Planned Parenthood v. Citizens for Community Action, 558 F.2d 861 (8th" }, { "docid": "7789353", "title": "", "text": "rights are 'so fundamental to our society that any violation thereof will cause irreparable harm irrespective of the financial impact.’ ” M.C. West, Inc. v. Lewis, 522 F.Supp. 338 (M.D.Tenn.1981) (injunction not issued because under earlier law court found no likelihood of success on the merits), quoting Central Alabama Paving, Inc. v. James, 499 F.Supp. 629, 639 (M.D.Ala.1980). I agree. The importance of the alleged infringement is not diminished by the fact that plaintiffs are members of groups that have not traditionally invoked the protections of the Fourteenth Amendment. In light of my finding that after Croson plaintiffs’ likelihood of success on the merits of their constitutional claim is not negligible, I cannot consider their claim of constitutional right differently from the claim of any other litigant. Even if the violation of the right to equal protection of law is not an irreparable harm, the difficulty of calculating money damages suggests that plaintiffs could not be made whole by an award of money damages and thus that the injury to them would be irreparable if the injunction does not issue. In their complaint, plaintiffs have not requested monetary relief. This is appropriate because if they were to be successful on the merits of their claim prior to the execution of any contracts under Wis.Stat. § 84.076, they would suffer no monetary damages. Plaintiffs would be entitled to money damages only if their motion for a preliminary injunction were denied, they were to succeed ultimately on the merits of their claim, and the state construction projects were to have proceeded so far that they could not reasonably be re-let under non-discriminatory bidding conditions. Thus, the fact that money damages are not requested in the complaint does not diminish plaintiffs’ argument that they may be entitled to money damages and that those damages will be difficult to calculate. In Roland Machinery, Co. v. Dresser Industries, 749 F.2d at 386, the Court of Appeals for the Seventh Circuit noted that “[i]n saying that the plaintiff must show that an award of damages at the end of trial will be inadequate, we do not" }, { "docid": "11784782", "title": "", "text": "rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed,” but (2) “where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must establish a causal link between the injunction sought and the alleged injury, that is, the plaintiff must demonstrate that the injunction will prevent the feared deprivation of free speech rights.” Bronx Household of Faith, 331 F.3d at 349-50. b. Analysis Here, even assuming that Plaintiffs claim falls within the second category in which irreparable harm is not presumed, the Court finds that Plaintiff has established the requisite causal link. “[T]he alleged deprivation of [Plaintiffs] First Amendment rights results directly from a policy of the [Defendant.” Bronx Household of Faith, 331 F.3d at 350; cf. Mullins v. City of N.Y., 634 F.Supp.2d 373, 392 (S.D.N.Y.2009) (“[A] clear causal link exists between defendants’ conduct and the deprivation of plaintiffs’ First Amendment rights. The threat ... is not conjectural.”). As just discussed in the context of constitutional standing, Plaintiff has introduced objective evidence that it has been denied access to TAB Hearings in the past, and that, absent an injunction, it will continue to be denied access in the future. To the extent that such a denial constitutes a violation of the First Amendment, Plaintiff has satisfied the irreparable harm prong. Cf. Clear Channel Outdoor, 608 F.Supp.2d at 493 (“If the Court were to find Plaintiffs’ First Amendment claims credible, it would necessarily have to find that the Plaintiffs suffered irreparable harm. The essential inquiry in this dispute is whether those First Amendment claims are convincing.”); Weingarten v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 591 F.Supp.2d 511, 515 (S.D.N.Y. 2008) (“[P]laintiffs claim that they already have been and, absent an injunction will be, prohibited by the challenged aspects of the Regulation from wearing political campaign buttons and from posting campaign materials. If and to the extent that this offends their First Amendment rights, they have satisfied the irreparable harm prong.”); Turley v. Giuliani, 86 F.Supp.2d 291, 295 (S.D.N.Y.2000) (“Because the violation" }, { "docid": "7789352", "title": "", "text": "been let under Wis.Stat. § 84.076 and it is later found that the statute is unconstitutional and the plaintiffs were entitled to bid on those projects, it will be difficult if not impossible for plaintiffs to establish the amount of damages to which they would be entitled. Plaintiffs’ claim is that their right to equal protection of laws guaranteed by the Fourteenth Amendment is violated when they are excluded from bidding on specified state construction contracts because of their race, national origin, or gender. Where violations of constitutional rights are alleged, further showing of irreparable injury may not be required if more than merely money is at stake. See Jessen v. Village of Lyndon Station, 519 F.Supp. 1183, 1198 (W.D.Wis.1981) (and cases cited therein); Walters v. Thompson, 615 F.Supp. 330 (N.D.Ill.1985); Wright & Miller, Civil § 2948 at 440. Another district court asked to enjoin enforcement of the minority business set-aside goals in an earlier version of 49 C.F.R. § 23 because the regulations were alleged to violate the Fourteenth Amendment held that “equal protection rights are 'so fundamental to our society that any violation thereof will cause irreparable harm irrespective of the financial impact.’ ” M.C. West, Inc. v. Lewis, 522 F.Supp. 338 (M.D.Tenn.1981) (injunction not issued because under earlier law court found no likelihood of success on the merits), quoting Central Alabama Paving, Inc. v. James, 499 F.Supp. 629, 639 (M.D.Ala.1980). I agree. The importance of the alleged infringement is not diminished by the fact that plaintiffs are members of groups that have not traditionally invoked the protections of the Fourteenth Amendment. In light of my finding that after Croson plaintiffs’ likelihood of success on the merits of their constitutional claim is not negligible, I cannot consider their claim of constitutional right differently from the claim of any other litigant. Even if the violation of the right to equal protection of law is not an irreparable harm, the difficulty of calculating money damages suggests that plaintiffs could not be made whole by an award of money damages and thus that the injury to them would be irreparable if" }, { "docid": "7846583", "title": "", "text": "Association, 684 F.Supp. 626, 628 (D.Neb.1988); Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861, 867 (8th Cir.1977). The plaintiff argues that his termination from the faculty at UNMC constitutes ongoing retaliation for exercising his First Amendment rights, and that the plaintiffs termination chills his and the entire UNMC faculty’s willingness to exercise their rights in the future. On the one hand, the defendants point out that generally speaking, preliminary injunctions are only issued in employment cases in “genuinely extraordinary situation[s].” Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 300 (8th Cir.1996) (quoting Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)). On the other hand, under Elrod and in the Eighth Circuit, a deprivation of constitutional rights generally constitutes irreparable injury- I find that the plaintiff is correct that ongoing retaliation against the exercise of First Amendment rights can create a chilling of those rights that constitutes an irreparable injury, but in the Eighth Circuit one must do more than simply allege that such a chill is in the air: Finally, Adam-Mellang argues that placing her on unpaid administrative leave and removing her from the Board of Directors was such clear retaliation for her assertion of sex and age discrimination claims that, unless enjoined, it will chill other Apartment Search employees, particularly Patricia Hovland, from asserting their statutory rights or appearing as witnesses in this case. A number of circuits have concluded that the chilling effect of unrestrained retaliation can be irreparable injury justifying a preliminary injunction. However, those courts have uniformly held that a chilling effect of this nature will not be presumed. It is an issue of fact that the employee seeking a preliminary injunction must prove. Adam-Mellang, 96 F.3d at 301. Although Adam-Mellang refers to “statutory” as opposed to “constitutional” rights, I find that this fact does not meaningfully distinguish the present case from Adam-Mellang. Cf. Bloom v. O’Brien, 841 F.Supp. 277, 279 (D.Minn.1993) (finding that the plaintiffs’ burden of demonstrating a chilling effect was met when exercising a First Amendment right would subject a plaintiff to" }, { "docid": "22341160", "title": "", "text": "of constitutional rights always constitutes irreparable harm. Our case law has not gone that far, however. See, e.g., City of Jacksonville, 896 F.2d at 1285 (“No authority from the Supreme Court or the Eleventh Circuit has been cited to us for the proposition that the irreparable injury needed for a preliminary injunction can properly be presumed from a substantially likely equal protection violation.”); Cunningham v. Adams, 808 F.2d 815, 821-22 (11th Cir.1987) (affirming denial of preliminary injunction in action alleging Fourteenth Amendment violations, and finding no abuse of discretion in district court’s rejection of the plaintiffs argument that “irreparable injury will be presumed where there has been a violation of substantive constitutional rights”); see also Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.1989) (“Constitutional harm is not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary injunction.”). The only areas of constitutional jurisprudence where we have said that an on-going violation may be presumed to cause irreparable injury involve the right of privacy and certain First Amendment claims establishing an imminent likelihood that pure speech will be chilled or prevented altogether. See City of Jacksonville, 896 F.2d at 1285 (citing Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir.1983) and Deerfield Med. Ctr., 661 F.2d at 338); see also Hohe, 868 F.2d at 72-73 (“[T]he assertion of First Amendment rights does not automatically require a finding of irreparable injury, thus entitling a plaintiff to a preliminary injunction if he shows a likelihood of success on the merits. Rather, ... it is the ‘direct penalization, as opposed to incidental inhibition, of First Amendment rights [which] constitutes irreparable injury.’ ”) (quoting Cate, 707 F.2d at 1188). This is plainly not such a case. Cf. City of Mobile v. Bolden, 446 U.S. 55, 76, 100 S.Ct. 1490, 1505, 64 L.Ed.2d 47 (1980) (constitutional right to vote, and the principle of equality among voters, is conferred by the Equal Protection Clause of the Fourteenth Amendment) (citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)). Simply put, this principle is the law: we may reverse a" }, { "docid": "886774", "title": "", "text": "therefore hold that Powell has a reasonable probability of success on his due process claim. III. Though I do not join the majority as to the previous matter, I agree that Powell has not shown irreparable harm. “[T]he absence of a finding of irreparable injury is alone sufficient ground for vacating the preliminary injunction.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 n.9 (8th Cir. 1981) (en banc). To establish irreparable harm, Powell must show that “the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.” E.g., Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011) (internal quotation marks omitted). Powell would suffer irreparable harm if the Fair policies were likely to chill protected speech. E.g., Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion). They are not, however, because we have already concluded that the Fair policies probably do not threaten Powell’s First Amendment rights. Powell I, 798 F.3d at 702. Powell argues that we should not allow our disposition of his First Amendment claim to impact our approach to his due process claim because the claims are independent. While free speech and due process are, indeed, separate constitutional guarantees, in this case the two are inextricably linked by Powell’s own assertion that the alleged due process violation chills his speech. Thus, to the extent that Powell raises chilled speech as an injury resulting from the loss of due process, there is no basis for finding irreparable harm. In his brief, Powell also proposes that the loss of due process, like the loss of a First Amendment freedom, is itself sufficient to establish irreparable harm. Notably, Powell cites no authority supporting his interpretation, likely because most courts to consider the issue conclude the opposite. Pub. Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380, 382 (1st Cir. 1987) (“The alleged denial of procedural due process, without more, does not automatically trigger ... a finding [of irreparable injury].”); Bauman v. Twp." }, { "docid": "6042353", "title": "", "text": "of relief. Gianni Cereda Fabrics, Inc., v. Bazaar Fabrics, Inc., 335 F.Supp. 278, 280 (S.D.N. Y.1971). A preliminary injunction is sought upon the theory that there is an urgent need for speedy action to protect the plaintiff’s rights. By sleeping on its rights a plaintiff demonstrates the lack of need for speedy action____ Gillette Co. v. Ed Pinaud, Inc., 178 F.Supp. 618, 622 (S.D.N.Y.1959); accord Manhattan State Citizens’ Group, Inc. v. Bass, 524 F.Supp. 1270, 1275-76 (S.D.N.Y. 1981); Continental Oil Co. v. Crutcher, 434 F.Supp. 464, 471-72 (E.D.La.1977). We would be loath to withhold relief solely on that ground, but we do give that fact consideration in measuring the claim of urgency- The Las Vegas ordinance was enacted in 1978. Appellees neither challenged the legislation nor attempted to find complying relocation sites. After receiving personal notice in November, 1982, that they would have to move by mid-April, they took no steps until ten days before the deadline when for the first time they sought a temporary restraining order. Despite abundant time and opportunity for gathering information in support of challenge to the ordinance, appellees presented the court no preliminary data regarding the availability of alternative locations. In support of their claim of hardship appellees simply offered affidavits asserting that they know of no places to relocate. Given this history and the further indication that the prospective injury consists primarily of the financial loss and costs involved in moving and reopening elsewhere, the balance of hardships is not seen decidedly to tip in appel-lees’ favor. We therefore will examine the other claims of injury. The district court found the possibility of irreparable injury in potential violations of appellees’ First Amendment rights. Any loss of First Amendment freedoms, even briefly, can constitute irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976). Because we disagree with the court’s conclusion that Lydo has made a showing that First Amendment freedoms are in fact violated by the ordinance, we cannot affirm a finding of irreparable injury on this basis. Lydo raises several First Amendment challenges to the" }, { "docid": "18684421", "title": "", "text": "preliminary injunction. b. The Potential for Irreparable Injury Plaintiffs assert they will suffer irreparable injury unless the preliminary injunction is granted because: (1) they will lose the opportunity to enter and supply a significant percentage of the table sugar market; and (2) the deprivation of their constitutional rights—as established above—constitutes irreparable injury in and of itself. Plaintiffs’ Brief at 3^4. Addressing the latter argument first, a well known treatise, cited by plaintiffs, states that, “[w]hen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” 11A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2948.1 at 161. The rule in our Circuit, however, is not so clear cut. In Public Serv. Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380, 382 (1st Cir.1987), the Court observed that eases holding that the deprivation of a constitutional right constitutes a sufficient showing of irreparable harm “are almost entirely restricted to cases involving alleged infringements of free speech.” The Court further noted that even the assertion of “First Amendment rights does not automatically require a finding of irreparable injury.” Id. (emphasis added). More recently, however, the Court appeared to accept a plaintiff’s assertion that the deprivation of constitutional rights guaranteed by the dormant commerce clause would constitute irreparable injury. Fireside Nissan, 30 F.3d at 211 (citations omitted). A recent, well-reasoned opinion from another district surveyed the cases and concluded that there was no general rule. Atlantic Coast Demolition and Recycling Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F.Supp. 301, 308-09 (D.N.J.1995). The Court opined that the lack of a bright line rule was appropriate given the equitable nature of injunctive relief, and that the best approach is to consider the deprivation of a plaintiffs rights under the dormant commerce clause (or any other constitutional provision) as a factor in assessing irreparable injury. The ensuing analysis of plaintiffs’ claim of irreparable injury follows the approach suggested in Atlantic Coast Demolition. Plaintiffs’ other irreparable injury argument depends on the effect Regulation 13 has on their businesses." }, { "docid": "5069586", "title": "", "text": "v. United Fed. of Teachers, 480 F.Supp. 550, 553 (S.D.N.Y.1979). The requirement of “irreparable harm” is satisfied in this case by the very nature of the claim. In Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976), the Supreme Court held that “(t)he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Since plaintiffs have alleged deprivation of their First Amendment rights, irreparable harm must be presumed. See, Intern. Soc. for Krishna, Etc. v. City of N.Y., 484 F.Supp. 966, 970-71 (S.D.N.Y.1979); NY-PIRG v. Village of Roslyn Estates, 498 F.Supp. 922, 930 (E.D.N.Y.1979); St. Martin’s Press, Inc. v. Carey, 440 F.Supp. 1196, 1204 (S.D.N.Y.1977); see also, Katz v. McAulay, 438 F.2d 1058, 1060 n. 3 (2d Cir.1971). The next prong of the preliminary injunction standard, “likelihood of success on the merits”, involves the Court in evaluating the merits of plaintiffs’ claims. Clearly the claim of deprivation of first amendment speech rights is the most substantial ground for challenging the university regulation, and that claim is addressed first. IV. The dissemination of information through group product-demonstrations is “speech”, and the regulation of such demonstrations must comport with the First Amendment. AFS v. Penn State, supra, 464 F.Supp. 1252 (M.D.Pa.1979), aff’d, 618 F.2d 252 (3d Cir.1980). We thus reject at the outset defendants’ contention that “(t)his case does not involve speech”. Affidavit in Opposition at 4. A demonstration of AFS products plainly includes communicative activity. Though the content or purpose of that communicative activity may be commercial in nature, the activity does not thereby lose its character as “speech”. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Nor does the method of communications— involving a physically present speaker — disqualify the activity as speech; indeed, it is a more literal form of speech than the advertising in Virginia Pharmacy. Of course, under certain circumstances in-person communication may claim only a lower level of First Amendment protection, but it is “speech” nonetheless. See, Ohralik v. Ohio State Bar" }, { "docid": "886775", "title": "", "text": "F.3d at 702. Powell argues that we should not allow our disposition of his First Amendment claim to impact our approach to his due process claim because the claims are independent. While free speech and due process are, indeed, separate constitutional guarantees, in this case the two are inextricably linked by Powell’s own assertion that the alleged due process violation chills his speech. Thus, to the extent that Powell raises chilled speech as an injury resulting from the loss of due process, there is no basis for finding irreparable harm. In his brief, Powell also proposes that the loss of due process, like the loss of a First Amendment freedom, is itself sufficient to establish irreparable harm. Notably, Powell cites no authority supporting his interpretation, likely because most courts to consider the issue conclude the opposite. Pub. Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380, 382 (1st Cir. 1987) (“The alleged denial of procedural due process, without more, does not automatically trigger ... a finding [of irreparable injury].”); Bauman v. Twp. of Tittabawassee, No. 14-cv-12841, 2014 WL 5499285, at *4 (E.D. Mich. Oct. 30, 2014) (“[T]he [c]ourt is not aware off ] any case where the threat of a [sic] violating a substantive due process right was considered irreparable harm....”); Barrett v. Harwood, 967 F.Supp. 744, 746 (N.D.N.Y. 1997) (“[T]he cases where courts have held that a constitutional deprivation amounts to an irreparable harm are almost entirely restricted to cases involving alleged infringements of free speech, association, privacy, or other rights as to which temporary deprivation is viewed of such qualitative importance as to be irremediable by any subsequent relief.”) (internal quotation marks omitted). Accordingly, I conclude that Powell’s alleged due process violation alone cannot support a finding of irreparable harm, and Powell is therefore not entitled to a preliminary injunction. IV. In sum, I respectfully disagree with the majority’s conclusion as to the merits of the due process claim and would instead hold that Powell has a reasonable probability of success on that claim. I nonetheless concur in the judgment to affirm the disr trict" }, { "docid": "18852195", "title": "", "text": "least questionable whether plaintiff could collect back pay and damages in this case. See e. g., Savage v. Com. of Pennsylvania, 475 F.Supp. 524, 532-34 (E.D.Pa.1979) aff’d without opinion, 620 F.2d 289 (3d Cir. 1980) (raising questions of Eleventh Amendment and good faith immunities as potentially barring award of damages in suit brought by state employee seeking reinstatement; injunction issued); Schrank v. Bliss, 412 F.Supp. 28, 28-40 (M.D.Fla.1979). More importantly, without preliminary relief, plaintiff will be terminated immediately from permanent employment without the procedural protections mandated by the due process clause of the Fourteenth Amendment to the Constitution of the United States. Under these circumstances, it appears that plaintiff will lose his right to due process of law, and that such a loss cannot be adequately compensated. That is, even if plaintiff can prevail ultimately in this case, he still will have lost his constitutional right to a pretermination hearing, and there is no adequate means of restoring that right once the loss is suffered. See Wright & Miller, Federal Practice and Procedure: Civil, § 2948 at 440 (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary”); Oshiven v. Court of Common Pleas, 469 F.Supp. 645, 654 (E.D.Pa. 1979) (denial of equal protection may constitute irreparable harm; preliminary injunction issued); Faulkner v. North Carolina Dept. of Corrections, 428 F.Supp. 100, 103-04 (W.D.N.C.1977) (ongoing deprivation of constitutional rights protecting liberty and property interests caused irreparable harm; preliminary injunction issued). See also Gonzalez v. Chasen, 506 F.Supp. 990, 997-98 (D.P.1980) (irreparable harm found in case involving dismissal of law enforcement employee; Sampson v. Murray distinguished). Cf. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (“The loss of First Amendment freedoms, for even minimal period of time, unquestionably constitutes irreparable injury.”) 3. Balance of Interests At oral argument, counsel for defendants contended that the state has a valid interest in making sure that qualified persons serve as law enforcement officers. Defendants’ counsel also pointed out that if plaintiff were to remain on the job," }, { "docid": "7789351", "title": "", "text": "to the court. Finally, because no argument or evidence has been presented on the question, I have not determined whether the state may rely on congressional findings of nationwide discrimination to support the constitutionality of its program. Reviewing the foregoing analysis, I conclude that plaintiffs likelihood of success on the merits of their constitutional claim is better than negligible. Accordingly, I will consider the other factors that determine whether plaintiffs’ request for a preliminary injunction should be granted. 2. Irreparable Harm In order to prevail on the motion for a preliminary injunction, plaintiffs must also show that they will suffer irreparable harm if the injunction does not issue. Irreparable harm is “harm that cannot be prevented or fully rectified by the final judgment after trial.” Roland Machinery Co. v. Dresser Industries, 749 F.2d 380, 386 (7th Cir.1984). Plaintiffs allege irreparable harm on two grounds. First, they contend that the alleged violation of constitutional rights constitutes irreparable injury as a matter of law. Second, they contend that if the state executes the contracts that have already been let under Wis.Stat. § 84.076 and it is later found that the statute is unconstitutional and the plaintiffs were entitled to bid on those projects, it will be difficult if not impossible for plaintiffs to establish the amount of damages to which they would be entitled. Plaintiffs’ claim is that their right to equal protection of laws guaranteed by the Fourteenth Amendment is violated when they are excluded from bidding on specified state construction contracts because of their race, national origin, or gender. Where violations of constitutional rights are alleged, further showing of irreparable injury may not be required if more than merely money is at stake. See Jessen v. Village of Lyndon Station, 519 F.Supp. 1183, 1198 (W.D.Wis.1981) (and cases cited therein); Walters v. Thompson, 615 F.Supp. 330 (N.D.Ill.1985); Wright & Miller, Civil § 2948 at 440. Another district court asked to enjoin enforcement of the minority business set-aside goals in an earlier version of 49 C.F.R. § 23 because the regulations were alleged to violate the Fourteenth Amendment held that “equal protection" }, { "docid": "23012426", "title": "", "text": "area, is simply too vague and unsubstantiated by the record to justify the burdens imposed on the constitutional right of privacy. See Interstate Circuit v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Bayou Landing, Ltd. v. Watts, 585 F.2d 1172, 1175 (5th Cir. 1977). Such amorphous standards would permit arbitrary governmental action aimed at the suppression of protected activity “solely because the residents of the community disapproved of the [nature of the activity] or were offended by it.” Id. at 117&-77. C. Irreparable Injury. In order for plaintiffs to be granted preliminary injunctive relief they were required to show that there was a substantial likelihood that they would suffer irreparable injury if an injunction were not granted. An injury is “irreparable” only if it cannot be undone through monetary remedies. Spiegel v. City of Houston, 636 F.2d 997 (5th Cir. 1981); Parker v. Dunlop, 517 F.2d 785, 787 (5th Cir. 1975). It is well settled that the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying, the grant of a preliminary injunction. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976); Johnson v. Bergland, 586 F.2d 993 (4th Cir. 1978); Citizens for a Better Environment v. City of Park Ridge, 567 F.2d 689 (7th Cir. 1975). Similarly the right of privacy must be carefully guarded for once an infringement has occurred it cannot be undone by monetary relief. Kennan v. Nichol, 326 F.Supp. 613, 616 (W.D.Wis.1971), aff’d mem., 404 U.S. 1055, 92 S.Ct. 735, 30 L.Ed.2d 743 (1972) (“to withhold a temporary restraining order is to permit the [constitutional right of privacy] to be lost irreparably with respect to the physician and those women for whom he would otherwise perform the'operation in the meantime.”); see Planned Parenthood v. Citizens for Community Action, 558 F.2d at 867. The district court misapplied the controlling law to the facts before it, and thereby abused its discretion, when finding no irreparable injury to pregnant womens’ rights of privacy because “other abortion facilities nearby [could] provide services to those" }, { "docid": "2052463", "title": "", "text": "the Church had violated the conditions under which the property was deeded, no immediate and irreparable injury had occurred, and no preliminary relief was warranted. B. Immediate and Irreparable Harm The trial court implicitly rejected our conclusion above, and dealt only with the Church’s second challenge to the constitutionality of the reverter proceedings provi sion, i.e., that the Commission had prejudged the ease, and thus that the statute was unconstitutional as applied. While the court noted that some indicia of prejudice cited by the Church were “troublesome,” it concluded that the plaintiff’s feared injury remained prospective. It therefore ruled that “[pjlaintiff has not carried its burden of persuasion that its threatened injury is immediate and irreparable, and accordingly the extraordinary remedy of a preliminary injunction is not appropriate at this time.” We find the court abused its discretion in denying the preliminary injunction, first, because the legal basis of that denial was in error. As set forth above, we have concluded that requiring the Church to submit to the Commission’s hearing procedures would deprive it of its right to due process under the Fourteenth Amendment. We also conclude the court abused its discretion in concluding that submission to the Commission’s proceeding did not constitute sufficient injury to warrant preliminary relief. Submission to a fatally biased decisionmaking process is in itself a constitutional injury sufficient to warrant injunctive relief, where irreparable injury will follow in the due course of events, even though the party charged is to be deprived of nothing until the completion of the proceedings. Gibson v. Berryhill, 411 U.S. at 571-72, 574-75, 93 S.Ct. at 1694, 1695-96. This is not a case like Reichenberger v. Pritchard, 660 F.2d 280 (7th Cir. 1981), where the plaintiffs alleged that a lawfully constituted decisionmaking body would at some future date deprive it of its rights at the unconstitutional behest of other parties. Rather the precise violation claimed here is the subjection to an unconstitutionally constituted decisionmaker. That injury has already occurred, and is therefore sufficiently “immediate” to warrant injunctive relief. We are also persuaded that the injury is irreparable. The district" }, { "docid": "18852196", "title": "", "text": "2948 at 440 (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary”); Oshiven v. Court of Common Pleas, 469 F.Supp. 645, 654 (E.D.Pa. 1979) (denial of equal protection may constitute irreparable harm; preliminary injunction issued); Faulkner v. North Carolina Dept. of Corrections, 428 F.Supp. 100, 103-04 (W.D.N.C.1977) (ongoing deprivation of constitutional rights protecting liberty and property interests caused irreparable harm; preliminary injunction issued). See also Gonzalez v. Chasen, 506 F.Supp. 990, 997-98 (D.P.1980) (irreparable harm found in case involving dismissal of law enforcement employee; Sampson v. Murray distinguished). Cf. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (“The loss of First Amendment freedoms, for even minimal period of time, unquestionably constitutes irreparable injury.”) 3. Balance of Interests At oral argument, counsel for defendants contended that the state has a valid interest in making sure that qualified persons serve as law enforcement officers. Defendants’ counsel also pointed out that if plaintiff were to remain on the job, and it became necessary for him to testify in criminal prosecutions, his credibility could be impeached by use of his prior felony convictions. The record in this case reflects that plaintiff has performed his job in a manner satisfactory to the Village of Lyndon Station. The record also shows that plaintiff already is involved in cases in which his testimony may be necessary. The fact that plaintiff satisfactorily has performed his job as police chief for more than six years, coupled with the fact that he presently remains on the job, leads me to conclude that neither the defendants nor the public will be harmed by an injunction requiring that plaintiff not be fired before receiving a due process hearing. These factors, balanced against the harm resulting from the loss of plaintiff’s constitutional right to a pre-termination hearing, lead me to conclude that the injunction in this case should issue, and that the public interest will not thereby be disserved. D. What Process is Due There are no established procedures applicable to every case in" }, { "docid": "11784781", "title": "", "text": "175 F.3d at 234 (“In the absence of a showing of irreparable harm, a motion for a preliminary injunction should be denied.”). The Supreme Court has long held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); accord Bery v. City of N.Y., 97 F.3d 689, 693-94 (2d Cir.1996). The Second Circuit, however, has “not consistently presumed irreparable harm in cases involving allegations of the abridgement of First Amendment rights.” Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342, 349 (2d Cir.2003); cf. Amandola v. Town of Babylon, 251 F.3d 339, 343 (2d Cir.2001) (per curiam) (acknowledging that the Second Circuit “has not spoken with a single voice on the issue of whether irreparable harm may be presumed with respect to complaints alleging the abridgement of First Amendment rights”). Clarifying this apparent tension, the Second Circuit has held that (1) “[wjhere a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed,” but (2) “where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must establish a causal link between the injunction sought and the alleged injury, that is, the plaintiff must demonstrate that the injunction will prevent the feared deprivation of free speech rights.” Bronx Household of Faith, 331 F.3d at 349-50. b. Analysis Here, even assuming that Plaintiffs claim falls within the second category in which irreparable harm is not presumed, the Court finds that Plaintiff has established the requisite causal link. “[T]he alleged deprivation of [Plaintiffs] First Amendment rights results directly from a policy of the [Defendant.” Bronx Household of Faith, 331 F.3d at 350; cf. Mullins v. City of N.Y., 634 F.Supp.2d 373, 392 (S.D.N.Y.2009) (“[A] clear causal link exists between defendants’ conduct and the deprivation of plaintiffs’ First Amendment rights. The threat ... is not conjectural.”). As just discussed in the context of constitutional standing, Plaintiff has introduced" }, { "docid": "23500927", "title": "", "text": "constitute irreparable harm if adequate compensatory relief will be available in the course of litigation. See Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974); Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1202 (9th Cir.1980). Here, Goldie’s’ harm would be easily calculable and compensable in dam ages if the state court appeal were successful. Second, the court determined that Goldie’s would lose goodwill and “untold” customers.' This finding, not based on any factual allegations, appears to be speculative. Speculative injury does not constitute irreparable injury. Wright and Miller, 11 Federal Practice and Procedure § 2948 at 436 (1973). Third, the court reasoned that if Goldie’s were evicted it would lose its first amendment right to disseminate adult books, films, and magazines in the immediate community. This case, however, does not implicate the first amendment, and the case relied upon by Goldie’s, Ebel v. City of Corona, 698 F.2d 390 (9th Cir.1983), is in-apposite. In Ebel, the plaintiffs challenged, on first amendment grounds, government action which was intended to suppress speech. Ebel, citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976), found that purposeful unconstitutional suppression of speech constitutes irreparable harm for preliminary injunction purposes. Unlike the plaintiff in Ebel, who offered evidence that the challenged ordinances were specifically aimed at her adult bookstore, Goldie’s has not even attempted to prove that section 1176 has been intentionally utilized to infringe upon free speech. We cannot, therefore, sustain a finding of irreparable injury on first amendment grounds. The district court, although it did not, could have relied on Goldie’s’ alleged deprivation of equal protection in its balance of hardships analysis. An alleged constitutional infringement will, often alone constitute irreparable harm. See Wright & Miller, 11 Federal Practice and Procedure § 2948 at 440 (1973). In this case, however, the constitutional claim is too tenuous to support our affirmance on that basis. Finally, in balancing the hardships, the district court undervalued the burden that a preliminary injunction would impose upon the Levins. “The only hardship" } ]

[ { "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": "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": "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": "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": "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": "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": "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": "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": "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": "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": "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": "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": "7963401", "title": "", "text": "2253(c)(2). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....'\" Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (quoting 28 U.S.C. § 2253(c)(1)). “The COA statute ... requires a threshold inquiry into whether the circuit court may entertain an appeal.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); citing Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997). The analysis “requires an overview of the claims in the habeas petition and a general assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to the district court’s application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “ ‘[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 1040. (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). IV. Graves claims first that he is actually innocent of the crime and that the imposition" }, { "docid": "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": "19629258", "title": "", "text": "Welch never claimed that the residual clause was unconstitutionally vague in his § 2255 motion, let alone that Johnson applies retroactively. Accordingly, courts below addressed neither issue. Indeed, Johnson was not even decided when the courts below issued their rulings. Those deficiencies should preclude us from deciding in this case whether Johnson is retroactive. Our role in reviewing the denial of a certificate of appealability is far more circumscribed than normal appellate review. The text of 28 U.S.C. § 2253 confirms this. Defendants can appeal their convictions and sentences as a matter of right on direct review, but § 2253 deprives courts of appeals of jurisdiction to review the denial of a petitioner's motion for federal postconviction relief unless he obtains a \"certificate of appealability.\" § 2253(c)(1). And he can obtain that certificate only if he makes \"a substantial showing of the denial of a constitutional right.\" § 2253(c)(2) ; see Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, this Court has instructed that review of the denial of a certificate of appealability is a retrospective inquiry into whether the movant's claims, as litigated in the district court, warrant further proceedings-not whether there is any conceivable basis upon which the movant could prevail. Courts must ask whether \"reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (emphasis added). They are to \"look to the District Court's application of [the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) ] to petitioner's constitutional claims and ask whether that resolution was debatable.\" Miller-El, supra, at 336, 123 S.Ct. 1029 (emphasis added). Until today, we did not require courts of appeals to consider all possible constitutional issues that might warrant relief as part of this inquiry. Those courts instead looked to how the movant framed his case in his motion to vacate. Even if, for example, a district court denies habeas relief based on procedural default and never reached the merits, the movant must establish not" }, { "docid": "1635856", "title": "", "text": "U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Thus, this Court’s examination is a “threshold inquiry [that] does not require full consideration of the factual or legal bases adduced in support of the claims,” but rather “an overview of the claims in' the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. In death-penalty cases, “any doubts as to whether the COA should issue are resolved in favor of the petitioner.” Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir.2008). “[T]he determination of whether a COA should issue must be made by viewing the petitioner’s arguments through the lens of the deferential scheme laid out in" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "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": "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": "14409113", "title": "", "text": "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, 150 L.Ed.2d 9 (2001). Under AEDPA, Cotton must obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “[U]ntil 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, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). To obtain a COA, Cotton must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 123 S.Ct. at 1039; Slack, 529 U.S. at 483, 120 S.Ct. 1595. To make such a showing, he 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.” Miller-El, 123 S.Ct. at 1039 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). In Miller-El, the Supreme Court instructed, as it had previously held in Slack, that we should “limit [our] examination to a threshold inquiry into the underlying merit of [the petitioner’s] claims.” Miller-El, 123 S.Ct. at 1034. The Court observed that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim ...” Id. at 1036. Instead, our determination must be based on “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 1039. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. We do not have jurisdiction to justify our denial of a COA based on an adjudication of the actual merits of the claims. Id. Accordingly, we cannot deny an “application for a COA merely because [we believe] the applicant will not demonstrate an entitlement to relief.” Id." } ]